Carolyn Beard v. Michael J. Astrue , 479 F. App'x 24 ( 2012 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-3371
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Carolyn Beard, *
*
Appellant, *
* Appeal from the United States
v. * District Court for
* Eastern District of Arkansas.
Michael J. Astrue, Commissioner, *
Social Security Administration, * [UNPUBLISHED]
*
Appellee. *
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Submitted: May 24, 2012
Filed: July 9, 2012
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Before WOLLMAN, MELLOY, and SMITH, Circuit Judges.
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PER CURIAM.
Carolyn Beard appeals from the district court’s1 order affirming the final
decision of the Commissioner of Social Security, which denied her application for
disability insurance benefits and supplemental security income. Beard alleged that
she had been disabled since October 2007. After a hearing, an administrative law
judge (ALJ) found that Beard’s impairments of a neck disorder and hypertension were
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).
severe, but did not meet a listed impairment either singly or in combination; that her
allegations regarding her limitations were not fully credible; that she had the residual
functional capacity to perform the exertional demands of light unskilled work; and
that she could perform her past relevant work of factory assembly worker and cashier.
The Appeals Council denied review, and the district court affirmed.
We reject Beard’s contention that the ALJ improperly disregarded the opinion
of her treating physician, who examined Beard twice and wrote a letter stating that
he had formed the opinion--based on Beard’s medical history, examination, lab
investigations, and educational and work history--that she was medically disabled and
unable to perform any work because of advanced chronic obstructive pulmonary
disease (COPD), worsening degenerative disc disease with pain, and depression. We
conclude that the ALJ properly discounted this opinion after finding that it was not
supported by the objective evidence in the record and that it contrasted with other
evidence in the record. See Wagner v. Astrue, 499 F.3d 842, 849 (8th Cir. 2007)
(ALJ may credit another medical evaluation over that of treating physician when
other assessment is supported by better medical evidence, or where treating physician
renders inconsistent opinions); Ellis v. Barnhart, 392 F.3d 988, 994-95 (8th Cir.
2005) (medical opinion that applicant is disabled involves issue reserved for
Commissioner, and is not entitled to controlling weight). As to the degenerative disc
disease, the ALJ properly found that tests did not indicate severe nerve impingement,
the treating physician’s physical exam did not reveal significant restrictions, and the
consulting physician’s examination showed a full range of motion. We note that
Beard did not allege in her application or testify at the hearing that she was disabled
by depression or COPD, and she did not seek medical treatment for breathing
difficulties. See Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001) (failure to
allege depression in disability application was significant); Gwathney v. Chater, 104
F.3d 1043, 1045 (8th Cir. 1997) (failure to seek medical assistance contradicts
subjective complaints).
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Beard also argues that the ALJ erred in discounting her credibility based on her
failure to have surgery when a neurologist discussed this possible treatment for her
neck pain, as she refused surgery for financial reasons. We reject this argument,
because the record does not indicate that Beard further explored her options for
getting financial assistance after the neurologist expressed a willingness to work with
her if she wanted surgery. See Osborne v. Barnhart, 316 F.3d 809, 812 (8th Cir.
2003) (failure to seek treatment is valid basis for discounting complaint when there
was no evidence claimant attempted to obtain treatment that was denied because of
insufficient funds). We also conclude that the ALJ did not err in discounting Beard’s
credibility based on her somewhat strenuous work as a waitress for several months
after her onset date, and based on her daily activities. See Dunahoo, 241 F.3d at
1038-39 (working at job while applying for benefits is inconsistent with complaints
of disabling pain); Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (where
adequately explained and supported, credibility findings are for ALJ to make); cf.
Pelkey v. Barnhart, 433 F.3d 575, 578-79 (8th Cir. 2006) (discounting credibility
based on reported daily activities).
The judgment is affirmed.
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