Jeff Blakeman v. Michael Astrue ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-3577
___________
Jeff Blakeman, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Michael J. Astrue, Commissioner of *
Social Security, *
*
Defendant - Appellee. *
___________
Submitted: April 4, 2007
Filed: December 10, 2007
___________
Before LOKEN, Chief Judge, BEAM and BYE, Circuit Judges.
___________
LOKEN, Chief Judge.
Forty-seven-year-old Jeff Blakeman applied for Social Security disability
benefits in July 2003, claiming a disability onset date of October 1, 1997. He suffers
from a genetic heart condition that allegedly causes disabling fatigue, dizziness,
shortness of breath, and arrhythmia. The administrative law judge (ALJ) held a
hearing on December 13, 2004, and found Blakeman not disabled. The Appeals
Council denied review. Blakeman filed this action for judicial review. The district
court1 upheld the final agency decision. Blakeman appeals raising a single issue --
whether substantial evidence on the administrative record as a whole supports the
ALJ's finding that Blakeman’s subjective complaints of disabling fatigue due to his
heart condition are not entirely credible.
Fatigue is one of the subjective symptoms that must be considered when, as in
this case, it is cited by a claimant as a cause of his disability and a medically
determinable impairment “could reasonably be expected to produce” that symptom.
20 C.F.R. §§ 404.1529(b), 416.929(b). Our decision in Polaski v. Heckler, 739 F.2d
1320, 1322 (8th Cir. 1984), established the factors an ALJ should consider when
evaluating the credibility of subjective complaints. Because “questions of fact,
including the credibility of a claimant's subjective testimony, are primarily for the
[Commissioner] to decide,” our review is limited to determining whether the ALJ
considered all the evidence relevant to Blakeman’s complaints of disabling fatigue and
whether that evidence contradicted his account sufficiently that the ALJ could
discount his testimony as not entirely credible. Benskin v. Bowen, 830 F.2d 878, 882
(8th Cir. 1987). After careful review of the record, we affirm.
I.
Blakeman and members of his family suffer from hypertrophic obstructive
cardiomyopathy, a hereditary heart condition also known as idiopathic hypertrophic
sub-aortic stenosis or IHSS. The administrative record includes a medical website's
description of the condition submitted by his treating cardiologist, Dr. Kelly Vaughn-
Whitley. The major abnormality is an excessive thickening of the heart muscles,
which tends to restrict the amount of blood the heart can hold and eject with each
contraction. The condition is usually apparent by the late teens and stable thereafter,
1
The HON. RICHARD H. BATTEY, United States district judge for the District
of South Dakota
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although some persons experience worsening symptoms in later life. Symptoms
include shortness of breath, chest pain, palpitations, lightheadedness, and blackouts,
symptoms which often have other causes. Blakeman, for example, is obese and was
a heavy smoker until he reduced his smoking to a few cigarettes per day in recent
years. The effects of IHSS vary greatly. Those with severe symptoms face the risk
of heart block and even sudden death. IHSS is commonly treated with medications,
a pacemaker implant, and in severe cases heart surgery.
After Blakeman received a pacemaker implant in early 1995, his doctor advised
that he could return to normal activities. He returned to his sporadic work as a truck
driver, maintenance worker, and carpenter, working as much as ten hours per day at
these jobs after the alleged disability onset date, October 1, 1997. He did not report
for recommended periodic checks of his pacemaker until September 1998, when his
brother died, possibly from a pacemaker malfunction. At that time, he told the doctor
he did not have any particular problems. From July 1999 to October 2000, he
performed strenuous mobile home warranty repair work for his brother's business.
The ALJ noted that he stopped this work “for reasons not related to his allegedly
disabling impairments.”
At a July 2001 disability examination, Blakeman noted “activity intolerance”
and complained of “frequent episodes of feeling tired and having dizzy spells.” The
examining physician, Dr. Paul Johnson, opined that Blakeman “could sit or stand for
up to 8 hours a day for work, but he is not capable of any lifting or carrying activities”
because of the “great risk” of sudden death from his heart condition. Dr. Johnson saw
Blakeman again in October 2001 when he complained of low back pain after
“working on his vehicle.” Dr. Johnson prescribed rest and medications, observing that
Blakeman was a “[h]ealthy male in no acute distress.”
In September 2001, Blakeman returned to Dr. Vaughn-Whitley complaining of
extreme fatigue that increased with activity and episodes of dizziness, blurred vision,
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heart palpitations, and near black-outs. He reported that “he is unable to maintain a
job” because of fatigue and other symptoms. The clinic prescribed medications and
reprogrammed his pacemaker in November. In May 2002, Blakeman reported that his
dizziness and palpitations improved after the pacemaker was reprogrammed and that
he exercised a half-hour each morning. His pacemaker was at the end of its useful
life. It was replaced with an AICD device because of his heart condition. The
physician's report described him as a “[w]ell-developed, obese, tired-appearing male
currently in no apparent distress.” When Dr. Vaughn-Whitley checked the AICD
device in July 2002, Blakeman had “no particular complaints.” In November 2002,
when he reported episodes of dizziness at the end of the day, Dr. Vaughn-Whitley
adjusted the AICD. In August 2003, Blakeman reported fatigue, dizzy spells with
temporary loss of vision, shortness of breath, and trouble sleeping. Dr. Vaughn-
Whitley prescribed medications and again adjusted the AICD.
In November 2003, in response to a request from Blakeman’s attorney, Dr.
Vaughn-Whitley opined that Blakeman's heart condition limited him to “episodes” of
less than fifteen minutes walking, fifteen minutes standing, and thirty minutes sitting.
The letter did not state how many such episodes Blakeman could tolerate in an eight-
hour day. That same month, Dr. Larry Vander Woude performed a residual functional
capacity assessment in connection with Blakeman's disability claim. Dr. Vander
Woude opined that Blakeman could occasionally lift twenty pounds, frequently lift
ten pounds, stand or walk six hours in an eight-hour workday with frequent breaks,
and sit six hours in an eight-hour workday. Dr. Vander Woude noted Dr. Vaughn-
Whitley's opinion that Blakeman's capacity for walking, standing, and sitting was
more limited because of his heart condition. A third physician performed another
residual functional capacity assessment in February 2004, agreeing with Dr. Vander
Woude as to Blakeman's capacity to walk, stand, and sit and opining there was “no
basis” for Dr. Vaughn-Whitley's more limited opinion.
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In August 2004, Blakeman arrived a day early for an appointment with Dr.
Vaughn-Whitley. He refused to reschedule the appointment, declaring that it was
unnecessary because he had no problems and that he would come back in six months
or a year. However, he visited Dr. Vaughn-Whitley in October 2004 complaining of
dizziness, shortness of breath with orthopnea,2 and dyspnea3 from walking 300 feet
to Wal-Mart. Dr. Vaughn-Whitley suspected his heart condition was the cause of
these symptoms and reprogrammed his AICD pacemaker.
At the December 2004 hearing, Blakeman testified that fatigue from his heart
condition is the primary reason he feels he is disabled. He helps with household
chores and grocery shopping, drives a car infrequently for short distances, reads and
plays cards for hobbies, and attends church but not regularly. He naps one or two
hours each afternoon, has dizzy spells most days, and is short of breath after walking
twenty or thirty feet.
The other witness at the hearing was vocational expert William Tysdal. The
ALJ recognized that Blakeman's heart condition is a severe impairment and therefore
a vocational expert was needed to help complete steps four and five of the evaluation
process, the determination of whether Blakeman has the residual functional capacity
(“RFC”) to perform his past relevant work, and if not, whether the Social Security
Administration met its burden to show that Blakeman has the RFC and the skills
needed to perform “other work [that] exists in significant numbers in the national
economy.” See 20 C.F.R. §§ 404.1520, 404.1560, 416.920, 416.960.
2
Orthopnea is “inability to breathe except in an upright position (as in
congestive heart failure).” Webster’s Third New International Dictionary 1594-95.
3
Dyspnea is “difficult or labored respiration.” Webster’s Third New
International Dictionary 712.
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The ALJ asked Tysdal whether jobs exist in significant numbers in the national
or regional economies for a worker of Blakeman's age, education, and prior work
experience who has the following RFC: stand or walk for four hours and sit for at
least four hours in an eight-hour day if allowed to alternate between these positions;
lift and carry up to fifteen pounds occasionally and ten pounds frequently; never climb
ladders or scaffolds; occasionally climb stairs, balance, kneel, crouch, and crawl; no
concentrated exposure to extreme cold; and no work in places that could damage a
pacemaker. Tysdal responded that this hypothetical worker could perform certain
unskilled sedentary jobs such as food and beverage order clerk or call-out operator.
The ALJ then asked:
Q. If we assume that this hypothetical worker needs to lie down
during the day . . . as you heard from [Blakeman's] testimony, would any
of these jobs exist?
A. No.
Q. Would any other jobs exist?
A. No.
Blakeman's attorney then asked Tysdal whether someone with the limitations set forth
in Dr. Vaughn-Whitley's November 2003 letter could perform jobs existing in
significant numbers in the national economy. Tysdal responded by noting a
significant ambiguity in that letter:
A. . . . [I]f I can just kind of summarize what . . . my feelings are
about the limitations, 15 minutes walking, 15 minutes standing, which
would be a total of 30 minutes walking and standing, and then 30
minutes sitting. If the individual could perform that throughout an eight-
hour workday, then . . . the occupations I identified would be within
these limits.
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Q. Okay. And it's unclear from the letter, to you, whether that's
what she's saying or not . . . ?
A. Well, if you add it up, it looks to me like 30 and 30: 30
minutes walking and standing, 30 minutes sitting . . . it's per episode.
There's no limitation per day.
On December 15, 2004, two days after the hearing, Dr. Vaughn-Whitley wrote
another letter to Blakeman's attorney that is part of the administrative record. She
opined that Blakeman has “multiple medical problems” and “his fatigue could very
well be related to any one of these conditions.” She then addressed the question of
Blakeman's functional capabilities:
Again, as stated in a letter dated November 5, 2003 Mr. Blakeman is
limited as to his ability to perform certain activities. Especially of
concern is his ability to perform any job in which he has to be available
on a consistent day-to-day basis for long periods of time.
He is able to walk for less than 15 minutes per episode. In fact, at his
last visit in October 2004, he informed me he was unable to walk 300
feet without having shortness of breath.
Standing is limited to 15 minutes per episode. Sitting is limited to 30
minutes per episode.
In his February 16, 2005, post-hearing opinion, the ALJ credited Dr. Vaughn-
Whitley's opinions as the treating cardiologist but found that Blakeman's “statements
concerning his impairments and their impact on his ability to work are not entirely
credible.” The ALJ then found that Blakeman has the residual functional capacity
described in the hypothetical to vocational expert Tysdal: standing or walking four
hours and sitting at least four hours in an eight-hour work day (consistent with Dr.
Johnson's 2001 disability evaluation and a somewhat greater limitation than Dr.
Vander Woude's November 2003 RFC assessment), provided he is able to alternate
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between standing, walking, and sitting (consistent with Dr. Vaughn-Whitley's
opinion). Based on this functional capacity and the testimony of vocational expert
Tysdal, the ALJ found that Blakeman could not perform his past relevant work but
retains the capacity to perform other unskilled sedentary jobs such as order clerk or
call-out operator and is therefore not disabled.
II.
On appeal, Blakeman’s sole argument is that the ALJ wrongly found his
subjective complaint of disabling fatigue not entirely credible. This attacks a
subsidiary finding. The ALJ's critical finding, based on medical opinions in the
record, was that Blakeman had the RFC to stand or walk for four hours and sit for at
least four hours in an eight-hour day, if allowed to alternate between these positions.
Vocational expert Tysdal testified that, if Blakeman has that RFC, jobs exist in
significant numbers that he can perform. Many workers suffer from fatigue but are
able to work, just as many people suffer from chronic pain that is not disabling. The
issue is not whether Blakeman's heart condition is fatiguing, it is whether his fatigue
is disabling. As in Moad v. Massanari, 260 F.3d 887, 892 (8th Cir. 2001), the ALJ
found Blakeman's complaints of fatigue “credible only to the extent consistent with
[the ALJ's] RFC findings.” That must be our focus.
Blakeman testified that he naps one or two hours each afternoon. The ALJ used
this testimony to focus the fatigue inquiry in questioning the vocational expert.
Tysdal responded that there are no jobs available for someone whose RFC is limited
by a need to lie down during the work day. The issue is not whether Blakeman was
credible in testifying that he naps each weekday afternoon he is not working. The
issue is whether his heart condition compels him to nap each afternoon.
Blakeman conceded at oral argument that it is “very difficult” to overcome the
ALJ's credibility finding for the period beginning with the October 1997 onset date
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and extending into 2003 given the strenuous work Blakeman sporadically performed
until October 2000, Dr. Johnson's disability evaluation in July 2001, and the medical
reports showing that Blakeman's IHSS condition was stable and being effectively
controlled by medications and a pacemaker. However, Blakeman argues, even if his
complaints of disabling fatigue were not credible in those early years of the alleged
disability period, the medical evidence of disabling fatigue beginning in August 2003
is “extremely powerful” and compels the conclusion that the ALJ's credibility finding
for this later period is not supported by substantial evidence.
As Blakeman's attorney recognized at the hearing, the medical evidence of
disabling fatigue is based upon Dr. Vaughn-Whitley's November 2003 letter, which
opined that Blakeman is only capable of walking less than 15 minutes, standing 15
minutes, and sitting 30 minutes “per episode.” When asked whether someone with
those limitations could perform jobs existing in significant numbers in the national
economy, Tysdal responded yes, if the ambiguous reference to “episode” meant a
cycle of alternating positions that could be repeated over the course of a work day.
After the hearing, Blakeman submitted a post-hearing letter from Dr. Vaughn-Whitley
that simply reiterated the limitations set forth in her November 2003 letter. In other
words, after identifying at the hearing an ambiguity perceived by the vocational expert
to be critical to the claim of disabling fatigue, Blakeman submitted a post-hearing
letter from the physician that either did not clarify the ambiguity or confirmed the
vocational expert's interpretation that the limitation as to walking, standing, and sitting
during a sixty-minute episode was consistent with Blakeman being able to stand or
walk a total of four hours and sit a total of at least four hours during an eight-hour
work day, provided he can alternate positions.
In his post-hearing opinion, the ALJ made the RFC finding and then based his
disability determination on Tysdal's testimony logically interpreting Dr. Vaughn-
Whitley's opinion as consistent with that RFC. There is other evidence in the record
supporting the implicit finding that his IHSS condition has not worsened in recent
years to the point that it caused disabling fatigue in late 2003 and 2004, such as Dr.
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Vaughn-Whitley's advice in April 2004 that Blakeman needed to become more
physically active, Blakeman's refusal to reschedule an appointment with Dr. Vaughn-
Whitley in June 2004 because it was unnecessary, and his continuing to smoke while
complaining of shortness of breath. After careful review of the administrative record,
we conclude that the ALJ’s finding discounting Blakeman's complaints of fatigue to
the extent inconsistent with the finding of his RFC is “supported by good reasons and
substantial evidence.” Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006).
Accordingly, the judgment of the district court is affirmed.
BYE, Circuit Judge, dissenting.
Because the ALJ’s decision denying Jeff Blakeman benefits is not supported
by the record, I would reverse the judgment of the district court and return with
instructions to remand to the Commissioner of the SSA for an award of benefits from
August 1, 2003.
I
The majority asserts this Court’s focus for review must be on the ALJ’s
conclusion Blakeman’s complaints of fatigue were “credible only to the extent
consistent with [the ALJ’s] RFC findings.” Ante at 8. However, this simply begs the
question at issue in this appeal: whether the ALJ’s credibility assessment, which
formed the basis for his RFC finding is supported by substantial evidence. The ALJ
first assessed the credibility of Blakeman’s complaints of fatigue and dizziness. Then,
based on such determination, the ALJ made the RFC determination. Of course, given
this order of analysis, the complaints the ALJ found to be “credible” will be consistent
with the RFC findings–those complaints are the sole basis for the RFC finding. The
majority’s analysis does nothing but confirm what we already knew - that the ALJ
discounted Blakeman’s complaints of fatigue and, therefore, found he has the RFC “to
lift 15 pounds occasionally and 10 pounds frequently, stand and/or walk for 4 hours
in an 8-hour workday, [and] sit for 4 hours in an 8-hour workday. . . .” What we have
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been asked to review, however, is whether the ALJ’s decision to discount Blakeman’s
complaints of fatigue and dizziness is substantially supported by evidence in the
record.4 My analysis leads to the conclusion the ALJ’s credibility assessment, and,
therefore, it’s RFC finding, is not supported by substantial evidence in the record with
respect to Blakeman’s disability from August 1, 2003, going forward.
It is a well-settled principle that if there are any inconsistencies in the evidence
as a whole, an ALJ is permitted to disbelieve a plaintiff's subjective complaints. See,
e.g., Cruse v. Bowen, 867 F.2d 1183, 1186 (8th Cir. 1989); Conley v. Bowen, 781
F.2d 143, 147, (8th Cir. 1986); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984). In making this determination, the ALJ must list specific reasons for the finding
on credibility, supported by the evidence in the case record. See Soc.Sec. Reg. 96-7p,
1996 WL 374186 at *4. In this case, each of the ALJ’s stated reasons for discounting
Blakeman’s testimony regarding his fatigue and dizziness is not supported by the
record.
A. Blakeman's Failure To Take Medication For Fatigue
The ALJ noted, despite his complaints of fatigue and dizziness, Blakeman takes
no medication for fatigue "such as a B-12 shot." R. at 24. There is no evidence in the
record that physicians use B-12 shots to treat fatigue resulting from IHSS, nor is there
evidence any physician treating Blakeman had recommended he use B-12 shots to
treat his symptoms of fatigue and dizziness. In addition, the record establishes
Blakeman had been receiving treatment to control and alleviate his fatigue and
4
The majority also maintains "[t]he issue is not whether Blakeman was credible
in testifying that he naps each weekday afternoon he is not working," but "whether his
heart condition compels him to nap each afternoon." Ante at 8. I fail to see how this
issue is relevant to our task in this case, which is to determine whether substantial
evidence in the record supports the ALJ's stated reasons for discounting Blakeman's
credibility. Here, the ALJ's credibility was not based on finding Blakeman's heart
condition did not compel him to nap each afternoon.
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dizziness, along with his other symptoms. As explained in the record, IHSS is a heart
condition in which there is an excessive thickening of the heart muscle. The condition
reduces the area where blood flows out of the heart and through the aortic valve (the
outflow tract), causing turbulent flow and sometimes obstruction to flow which results
in the excessive speed and force of heart contractions. Various drugs are used to treat
the disease, such as beta blockers, which ease symptoms by slowing the heart's
pumping action, and calcium channel blockers, which ease symptoms by relaxing the
heart and reducing the blood pressure in it. These drugs ease and control fatigue,
dizziness, and other similar symptoms by treating the underlying cause of the
fatigue—the excessive speed and force of his heart contractions.
The record shows, since August of 2003, Blakeman has been receiving
treatment and taking medication for his fatigue by treating the underlying cause of the
fatigue—the excessive speed and force of his heart contractions. In August of 2003,
in an effort to alleviate his symptoms of fatigue and dizziness, Blakeman began taking
Cardizem to suppress episodes of abnormally fast hearth rhythms and accelerated
blood flow across the outflow tract and aortic valve area of his heart. R. at 226, 229.
Blakeman did not respond to the Cardizem and, therefore, in January of 2004, Dr.
Vaughn-Whitley started Blakeman on Verapamil, a calcium antagonist which, "like
beta-blockers, reduces symptoms such as chest pain, breathlessness and palpitations"
and "can cause excessive slowing of the heart rate and lower blood pressure." R. at
278. At the time of the hearing, Blakeman was still taking Verapamil. Thus, the
ALJ's conclusion Blakeman is not taking medication for his fatigue is not only
unsupported by the record, it is contradicted by it.
B. Blakeman’s Ability To Walk 300 Feet
The ALJ discredited Blakeman's testimony about his limited ability to walk,
finding, although Blakeman testified he could not walk more than twenty to thirty feet
and now has to use a cane, he made "no such complaints or allegations to his
physician but rather reported he was unable to walk 300 feet without having shortness
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of breath," to which Dr. Vaughn-Whitley responded, "lose weight and try to get more
physically active." The ALJ incorrectly concluded Blakeman's testimony was
contradicted by the record.
Contrary to the ALJ's conclusion, the record shows Blakeman did complain to
his doctors he could not walk more than twenty to thirty feet without a cane or
something to lean against. Blakeman complained to Dr. Vaughn-Whitley about an
increase in fatigue with activity. Id. at 236. He told her activities, such as walking,
had been exacerbating his fatigue and dizziness. Id. He noted, as an example, that
"walk[ing] from the parking lot into WalMart" would exacerbate his symptoms. Id.Blakeman also explained the severity of his symptoms varied from day to day. He
indicated on some days he might be able to walk one block. Id. In 2004, Blakeman
indicated he was able to "walk behind a cart at WalMart," but could not "ambulate
very far if no cart [was] available for support." Id. at 251.
Moreover, Blakeman's testimony does not contradict his physician's report he
"was unable to walk 300 feet without having shortness of breath." Id. at 262.
Blakeman testified at the hearing before the ALJ: "In feet, I would say [I can walk]
20 or 30 feet, but I started using a cane, and it seems like if I pace myself and go a lot
slower, I can walk a little farther." Id. at 333. If one is short of breath at twenty feet,
they will assuredly be short of breath at 300 feet. If anything, Blakeman's concession
that he can walk farther than twenty feet if he moves slower and uses a cane shows he
was being forthright and supports the veracity of both statements.
Finally, the ALJ's reliance on Dr. Vaughn-Whitley's statement to Blakeman to
"lose weight and try to get more physically active" is wholly misplaced. Dr. Vaughn-
Whitley's statement was made in response to Blakeman's complaints about his back
pain and there is nothing in the record showing Dr. Vaughn-Whitley ever responded
in this manner when Blakeman complained of fatigue or dizziness.
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C. Blakeman's Testimony About His "Extremely Uneventful Lifestyle"
With respect to Blakeman's testimony on what the ALJ characterized as his
"extremely uneventful lifestyle," the ALJ noted it was:
interesting . . . that [Blakeman] is able to lose some weight over the last
few months given his testimony of such an extremely uneventful
lifestyle, a description contrary to his treating physician's
recommendation to increase his physical activity, as well as in conflict
with the claimant's other reports . . . including but not limited to such
activities as 'working on his vehicle' and dyspnea especially while
shopping or trying to keep up with his children.
R. at 25. The medical records show Blakeman's recorded weight varied as follows in
the months leading up to the 2004 hearing before the ALJ:
October 12, 2004 255.5 pounds
April 27, 2004 260 pounds
April 1, 2004 264 pounds
February 26, 2004 262 pounds
January 27, 2004 260 pounds
January 24, 2004 262 pounds
December 31, 2003 259 pounds
December 3, 2003 259 pounds
October 1, 2003 258 pounds
August 11, 2003 253 pounds
At most, the ALJ is referring to 8.5 pound drop from April 1, 2004, to October 12,
2004, a 3.2% weight loss over seven months. This is hardly remarkable. Further,
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because one can lose weight by reducing caloric intake or limiting fat consumption
without increased physical activity, Blakeman's weight loss does not contradict his
testimony about his extreme fatigue and dizziness. In addition, I fail to see how Dr.
Vaughn-Whitley's statement Blakeman needs to get more physically active contradicts
Blakeman's testimony about his fatigue and dizziness and his limited ability to do
physical activity. If anything, Dr. Vaughn-Whitley's statement supports Blakeman's
testimony.
The ALJ next found Blakeman's testimony about his "extremely uneventful
lifestyle" was contradicted by evidence in the record showing Blakeman had been
working on his vehicle. Specifically, on October 30, 2001, Blakeman sought medical
treatment for low back pain and the doctor noted, "He was working on his vehicle and
noted shortly afterwards he had tightness and back pain." R. at 158. This vague
statement about one instance of activity in 2001 does not contradict Blakeman's
testimony. As the ALJ noted, the record does not indicate what type of work was
involved. According to the ALJ, "activities of stooping or kneeling could be a
possible assumption." Id. at 21. Even if this "could be a possible assumption," other
types of activities could just as likely be assumed. There is simply no way to know,
with any degree of confidence, what type of activities were involved. Further, I do not
believe one isolated event of "stooping or kneeling" is inconsistent with Blakeman's
claims of extreme fatigue and dizziness or inconsistent with his "extremely uneventful
lifestyle." Blakeman has never claimed to be totally incapacitated. To the contrary,
he claims his ability to engage in physical activity is limited by his fatigue and
dizziness and that on some days he is able to engage in more strenuous activity than
on others, depending on the severity of his fatigue and dizziness. Stooping or
kneeling for a limited period of time on one given day is hardly inconsistent with
Blakeman's claims.
The ALJ also pointed to Blakeman's statements that he went shopping and tried
to keep up with his children as evidence Blakeman was lying about his fatigue and
dizziness. See id. at 25. The record, however, does not support this conclusion. In
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May of 2002, Dr. Vaughn-Whitley summarized Blakeman's symptoms as follows: "He
does have some [shortness of breath] on exertion, some days worse than others. He
notices this especially while shopping or trying to keep up with his children." Id. at
169. This statement is entirely consistent with Blakeman's claim of fatigue. If the
ALJ is trying to suggest anyone who can shop or tries to keep up with their children
can work eight hours, five days a week, such suggestion is simply absurd at best. See
Hogg v. Shalala, 45 F.3d 276, 278 (8th Cir. 1995) ("[T]he ability to do activities such
as light housework and visiting with friends provides little or no support for the
finding that a Claimant can perform full time competitive work.").
D. Consistency Of Blakeman's Complaints
The ALJ also based the credibility determination on its finding Blakeman's
complaints of dizziness were inconsistent. R. at 25. Specifically, the ALJ stated:
While [Blakeman] alleges dizzy spells, elsewhere claimant reports such
only upon standing and that such lasted only several seconds (Ex. 4F),
and later reported only some episodes but such only occurred at the end
of the day (Ex. 7F/11) and later still that he had no syncopal episode for
greater than four months.
Id. The intensity and duration of Blakeman's symptoms varying over the course of
several years is not surprising, nor is such a basis upon which to discount Blakeman's
testimony. Contrary to the ALJ's finding, the law recognizes "[s]ymptoms may vary
in their intensity, persistence, and functional effects, or may worsen or improve with
time, and this may explain why the individual does not always allege the same
intensity, persistence, or functional effects of his or her symptoms." Soc. Sec. Reg.
97-7p. Further, the ALJ's suggestion Blakeman's complaints of dizziness should be
discredited because he "had no syncopal episode for greater than four months" is
erroneous. R. at 25. A "syncopal episode" means fainting or losing consciousness.
A person can have dizzy spells without fainting or losing consciousness. I fail to see
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how Blakeman's continuous complaints of dizzy spells makes his testimony less
credible.
E. Blakeman's Work From October 1997 Through October 2000
I agree with the ALJ's conclusion about Blakeman's work history from October
1997 through October 2000 involving functional capability "somewhat greater than
the claimant has generally reported, and that [he] stopped his warrant maintenance
work for reasons not related to his allegedly disabling impairments." R. at 24. But
Blakeman's minimal work history in 1997-2000 is not good cause for challenging
veracity of his self-reports in 2001-2004. Further, a careful reading of the record
shows Blakeman was entirely forthright about his work history from the very
beginning of the application process for disability benefits. In fact, in May 2003, he
reported to the SSA he became "unable to work" on September 1, 2000, based on his
inability to be at work the entire day, be on time, and be adequate. Id. at 72. At best,
the ALJ should have used the information to adjust the disability onset date to October
2000 or some subsequent date.
F. Blakeman's Failure To Follow Treatment Regimen
The ALJ attacks Blakeman's credibility by enumerating events which the ALJ
concluded showed Blakeman did not follow his doctors' advice. For example, the ALJ
noted Blakeman had failed to sign up for telephonic pacemaker checks, and Dr.
Vaughn-Whitley ended up signing him up for these checks. R. at 25. While
Blakeman had not signed up for the pacemaker checks, the record suggests no one
ever instructed him to register for them. For his first pacemaker, the record indicates
on February 14, 1995, a Dr. John R. Bedingfield, Jr., noted: "Monthly telephone
follow-ups would seem to be unnecessary in that he does not require the pacemaker
for normal heart rate purposes and therefore a q. 6 month follow-up was arranged here
in the office." Id. at 196. After his second pacemaker was installed, his treating
physician noted: "We will see him back in three to four months for a recheck of his
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AICD, sooner if he would have problems." Id. at 230. A handwritten nursing note
states: "Pt's wife called today wondering about life watch call / does he still need to
have phone checks / discussed with Dr. Whitely / pt has AICD does not need life
watch check / pt was called and informed." Id. at 240.
The ALJ also cited one instance where Blakeman refused to schedule a timely
follow-up appointment. R. at 25. While Blakeman did state he refused to schedule
such an appointment, he did, in fact, schedule, and attend, a follow-up appointment.
Id. at 260. The record shows on July 12, 2004, Blakeman had an appointment with
a cardiologist whom Dr. Vaughn-Whitley had referred. Id. Moreover, the ALJ noted
although Blakeman testified he generally sees a doctor every month for his IHSS and
his AICD, the record indicated otherwise. Id. at 25. The record, however, shows
Blakeman was seen by doctors on August 11, September 11, October 13, and
November 5, 2003, and January 22, 28, February 26, April 27, July 12, and October
12, 2004. See id. at 219, 221-22, 223, 225, 226-27, 229, 235-48, 254, 260. This
record is entirely consistent with Blakeman's testimony about generally going to the
doctor every month but, while at the time of the ALJ hearing, it had been about three
months.
The ALJ also relied on some reports in the record of Blakeman refusing to go
to the emergency room (after nurses instructed him to do so over the phone) and
missing appointments. Id. at 240. The record shows Blakeman refused to go to the
emergency room and missed appointments due to a lack of insurance. The nursing
notes from Dr. Vaughn-Whitley's examination of Blakeman on August 8, 2003, state
"[p]t. has ref[used] numerous times to go to ER [and] also has canc[elled] numerous
AICD appt. here due to lack of ins[urance] or T-19." Id. The "T-19" notation is a
reference to authorization under Title 19 of the SSA, or Medicaid.
An ALJ "must not draw any inferences about an individual's symptoms and
their functional effects from a failure to seek or pursue regular medical treatment
without first considering . . . information in the case record, that may explain
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infrequent or irregular medical visits or failure to seek medical treatment," such as
"[t]he individuals [inability] to afford treatment [or obtain] access to free or low-cost
medical services." Soc. Sec. Reg. 96-7p. Here, the record provided information
explaining Blakeman's missed appointments were due to a lack of insurance or
guarantee he would be reimbursed by Medicaid. It was, therefore, error for the ALJ
to discount the credibility of Blakeman's statements of fatigue and dizziness based on
refusal to go to the emergency room and his missed appointments.
The ALJ also pointed to Blakeman's failure to pursue physical therapy for his
shoulder injury, stating, "No records indicate claimant complied with a January 2004
recommendation [from a Dr. Kevin Brown that] he pursue physical therapy." R. at 22.
This is false. Dr. Vaughn-Whitely noted in February 2004, "He's been doing [physical
therapy] on his shoulder in Belle Fourche [Family Medical Center]." Id. at 254. Thus,
the record actually demonstrates the opposite of what the ALJ concluded.
Finally, the ALJ attacked the credibility of Blakeman's statements about his
fatigue and dizziness on the ground he continued to smoke despite complaining of
shortness of breath. The ALJ cited Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir.
1997) and Sias v. Secretary of Health and Human Services, 861 F.2d 475 (6th Cir.
1988) (per curiam), for the proposition Blakeman failed to heed the advice of his
doctors. There is no evidence in the record which shows Blakeman's doctor ever
expressly told him to quit smoking. On July 16, 2001, there is one notation from Dr.
Paul Johnson, a family practice doctor: "Meds. Wellbutrin 150 mg b.i.d. for stopping
smoking." R. at 158. But there is no consistent recommendation that Blakeman take
Wellbutrin, an antidepressant, and no prescription for Wellbutrin within two years of
the hearing before the ALJ. Further, there is nothing in the record suggesting smoking
cessation would alleviate any of the symptoms suffered by Blakeman. The
information in the record about IHSS does not list smoking cessation under its
"General Advice" category, despite advising a person with IHSS to engage in
"sensible eating habits" and alcohol moderation. Id. at 282.
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In addition to the lack of evidence in the record linking any of his symptoms
with smoking, the record shows Blakeman had quit smoking prior to the hearing
before the ALJ. In July 2002, he reported smoking what Dr. Vaughn-Whitley
characterized as "only" five cigarettes a day. Id. at 230. On October 1, 2003, he
reported he was not smoking but was exposed to second hand smoke on occasion. Id.
at 213. Given Blakeman did seek treatment and follow the treatment regimen for his
underlying heart condition, his "failure to stop smoking . . . [does] not show that [his]
complaints were not credible." O'Donnell v. Barnhart, 318 F.3d 811, 819 (8th Cir.
2003).
II
Much of the evidence cited by the ALJ to discredit Blakeman's subjective
complaints of fatigue and dizziness is not supported by the record. In fact, some of
the evidence actually bolsters the conclusion Blakeman is telling the truth. Here,
"[t]he record as a whole, including [Blakeman's] testimony and all of the medical
records, corroborates [Blakeman's] subjective complaints in such a qualitative manner
as to negate the inconsistencies pointed out by the ALJ." Holmstrom v. Massanari,
270 F.3d 715, 722 (8th Cir. 2001). The activities Blakeman had been performing,
including work he may have done on his vehicle in 2001, do not demonstrate his
testimony as to fatigue and dizziness was untruthful. See, e.g., Draper v. Barnhart,
425 F.3d 1127, 1131 (8th Cir. 2005) (noting discounting claimant's subjective
complaints not appropriate merely because her "activities of daily living involved
some light exertional activities, such as household chores, laundry, grocery shopping,
mowing, and other chores"); cf. Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir.
1996) (making bed, preparing food, performing light housekeeping, grocery shopping,
and visiting friends not substantial evidence claimant could perform competitive
work); Rainey v. Dep't of Health & Human Servs., 48 F.3d 292, 203 (8th Cir. 1995)
(finding washing dishes, light cooking, reading, watching television, visiting mother,
and driving to shop for groceries were not substantial evidence of the ability to do
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full-time, competitive work). Therefore, the decision of the district court should be
reversed.
The only remaining question, then, is whether the case should be remanded to
the ALJ for further proceedings consistent with the court's opinion or with instructions
to award benefits. Where the total record convincingly establishes disability and
further hearing would merely delay the receipt of benefits, this court has ordered the
immediate award of benefits without further proceedings. See, e.g., Cline v. Sullivan,
939 F.2d 560, 569 (8th Cir. 1996); Jeffrey v. Sec'y of Health & Human Servs., 849
F.2d 1129, 1133 (8th Cir. 1988); Beeler v. Bowen, 833 F.2d 124, 127-28 (8th Cir.
1987). Where "the hypothetical question posed to the vocational expert was
inextricably intertwined with the ALJ's credibility findings, perforce there must be
posed to a vocational expert hypothetical questions based on findings entered after a
consideration of the evidence that the ALJ failed to take into account." Baumgarten,
75 F.3d at 370. In this case, the ALJ did pose an alternative hypothetical question to
the vocational expert as to whether any jobs would exist in significant numbers in the
national or regional economy that a person who needed to lie down during the day
could perform, "as was—as you heard from the Claimant's testimony." R. at 339-340.
The vocational expert responded, "They would not, no." Id. at 340. Given this
testimony, I think the record is clear the SSA did not meet its burden of showing
Blakeman could still work and remand for further proceedings is, therefore,
unnecessary. Moreover, the record clearly demonstrates the onset date of Blakeman's
disability was August 1, 2003. Therefore, I would remand to the ALJ with
instructions for an award of benefits from August 1, 2003, going forward.
III
Because I do not view the ALJ's credibility assessment as being supported by
the record and because I find such record establishes Blakeman became disabled in
August of 2003, I respectfully dissent.
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