Royce McDade v. Michael J. Astrue , 720 F.3d 994 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-3091
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Royce Glen McDade
lllllllllllllllllllll Plaintiff - Appellant
v.
Michael J. Astrue, Commissioner, Social Security Administration
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Western District of Arkansas - Hot Springs
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Submitted: February 14, 2013
Filed: July 29, 2013
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Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Royce Glen McDade applied for disability insurance benefits and supplemental
security income in February 2008. McDade now appeals the district court’s1 decision
upholding the Social Security Commissioner’s denial of his application. We affirm.
I.
McDade applied for disability and disability insurance benefits under Title II
of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income
under Title XVI of that Act, 42 U.S.C. § 1382, alleging disability beginning May 26,
2007. His claims were denied initially and on reconsideration. McDade then
requested a hearing before an administrative law judge (“ALJ”).
At the hearing, McDade provided testimony regarding his various medical
issues, including respiratory distress; heart problems; diabetes; obesity; arthritis;
depression; anxiety; and severe pain in his neck, back, and pelvis. In particular,
McDade described disabling pain in his back, neck, and pelvis. McDade’s mother
also testified, noting that she has to assist McDade with some daily activities, such
as laundry and some housework, and that McDade lies down for several hours each
day and sometimes just stares into space. The ALJ also reviewed McDade’s
extensive history of medical treatment. Applying the familiar five-step sequential
evaluation for disability,2 the ALJ determined that McDade has a severe impairment
and is unable to perform his past relevant work, but that he is able to perform the full
1
The Honorable Barry A. Bryant, United States Magistrate Judge for the
Western 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).
2
“The five-part test is whether the claimant is (1) currently employed and (2)
severely impaired; (3) whether the impairment is or approximates a listed impairment;
(4) whether the claimant can perform past relevant work; and if not, (5) whether the
claimant can perform any other kind of work.” King v. Astrue, 564 F.3d 978, 979 n.2
(8th Cir. 2009).
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range of sedentary work and is not disabled. Subsequently, the Appeals Council
denied McDade’s request for review. The district court affirmed the denial of
benefits.
On appeal, McDade alleges that the ALJ erred by (1) improperly evaluating
McDade’s subjective complaints of pain, (2) failing to give adequate weight to the
opinions of Drs. Clary, Hurst, and Tucker, (3) failing to elicit necessary testimony
from the vocational expert at Step 5, and (4) failing to properly apply the Adult
Listing of Impairments at Step 3.
II.
We review the district court’s decision upholding the denial of social security
benefits de novo. See Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012). “We
will uphold the ALJ’s decision to deny benefits if that decision is supported by
substantial evidence in the record as a whole.” Id. “Substantial evidence is less than
a preponderance, but enough that a reasonable mind might accept it as adequate to
support a decision.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). We consider
both evidence that detracts from the ALJ’s decision, as well as evidence that supports
it, see Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011), but we will not reverse
simply because some evidence supports a conclusion other than that reached by the
ALJ, Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006).
A.
First, McDade argues the ALJ erred by not giving sufficient weight to his
subjective complaints of pain. When analyzing a claimant’s subjective complaints of
pain, the ALJ must consider the five factors from Polaski v. Heckler: (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
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medication; and (5) functional restrictions. See 739 F.2d 1320, 1322 (8th Cir. 1984);
see also 20 C.F.R. §§ 404.1529, 416.929. “The ALJ [is] not required to discuss
methodically each Polaski consideration, so long as he acknowledge[s] and
examine[s] those considerations before discounting [the claimant’s] subjective
complaints.” Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). “Because the ALJ
[is] in a better position to evaluate credibility, we defer to his credibility
determinations as long as they [are] supported by good reasons and substantial
evidence.” Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006).
Here, the ALJ cited the Polaski factors in his decision and actually credited
many of McDade’s subjective complaints of pain. To the extent the ALJ discredited
or discounted McDade’s assertion that his pain was completely disabling, we find the
ALJ provided good reasons supported by substantial evidence. The ALJ noted
McDade was not unduly restricted in his daily activities, which included the ability
to perform some cooking, take care of his dogs, use a computer, drive with a neck
brace, and shop for groceries with the use of an electric cart. The ALJ also noted that
McDade did not take any long-term narcotic medication for pain relief, despite his
allegations of chronic disabling pain. Finally, the ALJ concluded, based on several
aspects of McDade’s medical record, that McDade’s “description of the severity of
the pain has been so extreme as to appear implausible.” See Admin. R. 27 (citing
evidence of only minor lumbar spine abnormalities, the absence of irregularities in
McDade’s cervical spine, and a neurologist’s report that McDade suffered from
“some genuine weakness and some not so genuine weakness”). Because the ALJ
properly applied Polaski and provided valid reasons for discounting McDade and his
mother’s testimony, we find the ALJ did not err in discounting the most severe
subjective complaints of pain. See Perks, 687 at 1093 (affirming ALJ’s decision to
discount claimant’s reports of disabling back pain where claimant’s normal activities
included “meal preparation, mowing his yard on a riding mower, shopping for food,
and maintaining the family’s finances”).
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B.
McDade also argues the ALJ gave inadequate weight to the medical opinions
of Drs. Clary, Hurst, and Tucker. We disagree and find the ALJ properly weighed
these opinions.
1.
Dr. Patrick Clary is a chiropractor who began treating McDade after a car
accident in 2007. Although a chiropractor is not an acceptable medical source for
determining disability, see 20 C.F.R. §§ 404.1513(a), 416.913(a), evidence from
chiropractors may be used to show “the severity of [claimant’s] impairment(s) and
how it affects [claimant’s] ability to work,” see §§ 404.1513(d), 416.913(d). McDade
argues that the ALJ improperly disregarded Dr. Clary’s evidence regarding McDade’s
impairments, including a series of spinal impairment ratings.
We agree with McDade that Dr. Clary’s evidence, including his reports of
McDade’s cervical and lumbar spine permanent impairment ratings, could be
considered by the ALJ in assessing the severity of McDade’s impairments. Indeed,
the ALJ did consider Dr. Clary’s submissions. See Admin. R. 25. But we do not
agree with McDade’s argument that the ALJ improperly weighed Dr. Clary’s
evidence. The ALJ determined that McDade’s back pain was a severe impairment
that limited him to sedentary work, suggesting that Dr. Clary’s evidence was at least
partially credited. And based on the record before us, the ALJ’s conclusion regarding
McDade’s back pain appears consistent with the particular impairment ratings Dr.
Clary assigned (25-28% permanent impairment rating for cervical spine, and 17.7-
20.4% permanent impairment rating for lumbar spine). See id. at 335-36. McDade’s
own letter to the court explains that “[f]or individuals who work in sedentary jobs,
there may be no decline in their work ability although their overall functioning is
decreased. . . . [A] 30% impairment rating does not correspond to a 30% reduction in
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work capability.” Appellant’s 28(j) Letter, 4, Feb. 2, 2013. Thus, Dr. Clary’s
impairment ratings, standing alone, provide little insight into how these spinal
impairments would impact McDade’s ability to work. See id. (“[I]mpairment ratings
are not intended for use as direct determinants of work disability.”). Thus, we
conclude that the ALJ gave appropriate weight to Dr. Clary’s evidence.
2.
Dr. Katharine Hurst is a general practitioner who began treating McDade in
1999. McDade visited Dr. Hurst nearly 20 times at the Charitable Christian Medical
Clinic. In June 2007, Dr. Hurst noted that McDade was significantly disabled and
needed at least temporary disability benefits because he lacked insurance. Admin. R.
23-24. In September 2009, Dr. Hurst wrote a letter stating McDade’s medical issues
“make it very difficult for him to maintain gainful employment,” and requesting that
he receive some form of assistance, such as Medicare, since McDade’s medical issues
exceeded the scope of the clinic’s ability. Id. at 625-27. Dr. Hurst stated that she did
not think McDade could work an eight-hour day in welding or truck driving. Id. at
626. McDade argues the ALJ, who largely discounted Dr. Hurst’s conclusions, id.
at 27, did not give appropriate weight to Dr. Hurst’s evidence and opinions.
After careful review, we find the ALJ’s decision to discount many of Dr.
Hurst’s conclusions was appropriate. First, the ALJ correctly noted that Dr. Hurst
appeared to rely largely on McDade’s own subjective reports of symptoms and
limitations. See Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (“ALJ was
entitled to give less weight to [physician’s] opinion, because it was based largely on
[claimant’s] subjective complaints rather than on objective medical evidence.”).
Second, Dr. Hurst’s opinion regarding McDade’s difficulty maintaining employment
is conclusory, and she fails to explain why she reached this conclusion. See Hamilton
v. Astrue, 518 F.3d 607, 610 (8th Cir. 2008) (“[A] treating physician’s opinion does
not deserve controlling weight when it is nothing more than a conclusory
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statement.”). Finally, the ALJ noted that it was unclear whether Dr. Hurst’s use of
the term “disabled” comported with the use of the term by the Social Security Act and
regulations. Indeed, Dr. Hurst’s only specific mention of employment was her
reference to McDade’s inability to perform his past relevant work (i.e., welding or
truck driving), which is consistent with the ALJ’s decision limiting McDade to
sedentary work. And even if Dr. Hurst had intended to assert that McDade was
disabled, this judgment is reserved for the Commissioner. See Ellis v. Barnhart, 392
F.3d 988, 994 (8th Cir. 2005) (“A medical source opinion that an applicant is
‘disabled’ or ‘unable to work,’ however, involves an issue reserved for the
Commissioner and therefore is not the type of ‘medical opinion’ to which the
Commissioner gives controlling weight.”). The ALJ was entitled to discount the
conclusions of Dr. Hurst.
3.
Dr. Paul Tucker is a neurologist who saw McDade on several occasions
between 2008 and 2010. The ALJ considered evidence from several of McDade’s
visits with Dr. Tucker in 2008. See Admin. R. 26. Additionally, McDade submitted
a letter from Dr. Tucker written in early 2010, after the ALJ’s hearing, to the Appeals
Council. See Add. to Br. of App. 51. The parties disagree about whether Dr.
Tucker’s post-hearing letter was “new” and “material,” and thus required to be
considered by the Appeals Council. See Perks v. Astrue, 687 F.3d 1086, 1093 (8th
Cir. 2012) (“[T]he Appeals Council must evaluate the entire record, including any
new and material evidence submitted to it after the ALJ’s decision.” (citing 20 C.F.R.
§ 404.970(b)). But even assuming, without deciding, that Dr. Tucker’s post-hearing
letter does satisfy Perks, we conclude that this evidence does not undermine the
ALJ’s determination in this case.
When the Appeals Council denies review of an ALJ’s decision after reviewing
new evidence, “we do not evaluate the Appeals Council’s decision to deny review,
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but rather we determine whether the record as a whole, including the new evidence,
supports the ALJ’s determination.” Cunningham v. Apfel, 222 F.3d 496, 500 (8th
Cir. 2000). Here, Dr. Tucker’s letter indicated that McDade had “significant
problems,” “did not seem to feign illness,” and “was trying to do the best he could,
and he was limited.” Add. to Br. of App. 51. This is entirely consistent with the
ALJ’s determination in this case, which credited many of McDade’s health issues and
found that he was limited to sedentary work. And Dr. Tucker’s conclusory statement
that McDade “had become unable to work on March 14th, 2009,” id., is not entitled
to deference because it is a judgment reserved for the Commissioner. See Ellis, 392
F.3d at 994. Thus, we conclude the ALJ’s determination was supported by the record
as a whole, including the post-hearing evidence from Dr. Tucker.
C.
McDade also argues the ALJ erred by using the Medical-Vocational Guidelines
(the “Grids”), instead of the testimony of a vocational expert, to determine whether
there was substantial gainful employment McDade could perform. At McDade’s
hearing, the ALJ only asked the vocational expert to characterize McDade’s past
relevant work. The ALJ later applied the Grids to determine whether McDade was
disabled. McDade argues that because he suffers from a nonexertional impairment,
pain, the ALJ was required to elicit testimony from the vocational expert regarding
the existence of jobs for a person with McDade’s impairments. See Baker v.
Barnhart, 457 F.3d 882, 894 (8th Cir. 2006) (“Generally, where the claimant suffers
from a nonexertional impairment such as pain, the ALJ must obtain the opinion of a
vocational expert instead of relying on the Medical-Vocational Guidelines.”).
We disagree. Although McDade is generally correct, Baker goes on to state
that “when a claimant’s subjective complaints of pain are explicitly discredited for
legally sufficient reasons articulated by the ALJ, the Secretary’s burden at the fifth
step may be met by use of the [Grids].” Id. at 894-95 (internal quotation and
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alteration omitted). Here, as discussed in detail above, the ALJ discredited McDade’s
allegations of completely disabling pain for legally sufficient reasons, including his
not unduly restricted daily activities, the absence of long-term narcotic pain
medication, and inconsistencies with other aspects of his medical record. Therefore,
we conclude the ALJ properly resorted to the Grids at Step 5. See Ellis v. Barnhart,
392 F.3d 988, 996 (8th Cir. 2005) (allowing reliance on the Grids where ALJ properly
discredited claimant’s complaints of pain and found claimant could perform full range
of sedentary activity).
D.
Lastly, McDade argues the ALJ failed to properly apply the Adult Listing of
Impairments. See 20 C.F.R. pt. 404, subpt. P, app. 1. Specifically, McDade argues
his condition meets Listing 1.04 (Disorders of the Spine),3 and thus he should have
been found disabled at Step 3. The ALJ found no evidence that McDade satisfied the
criteria for Listing 1.04 or any other listing. See Admin. R. 19.
The Government argues McDade waived this argument by failing to raise it in
the district court. Although we also have concerns about whether McDade properly
preserved this argument, assuming, without deciding, that this issue was not waived,
we do not find error in the ALJ’s conclusion at Step 3. The claimant bears the burden
of demonstrating that his impairment matches all the specified criteria of a listing.
See Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step four of
[disability] analysis, the claimant has the burden of showing that she is disabled.”).
3
In his brief, McDade also argues that his condition meets either Listing
1.00(B)(2) or 1.05(C). However, Listing 1.00 is simply an introductory listing that
explains the criteria for meeting various disorders of the musculoskeletal system and
is not an independent impairment. Listing 1.05(C) relates to amputation, which does
not appear relevant to McDade. Thus, we do not consider whether McDade meets
either of these listings.
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Here, although McDade presents some evidence that he satisfies Listing 1.04, such
as evidence of spinal stenosis, he provides no evidence that his spinal injury resulted
in compromise of the nerve root or the spinal cord, which is a requirement for all
conditions within Listing 1.04. See 20 C.F.R. pt. 404, subpt. P, app. 1., § 1.04.
Therefore, we agree with the ALJ’s conclusion that McDade did not satisfy Listing
1.04.
III.
Accordingly, we affirm.
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