Rodney Gregory v. Commissioner, Social Security ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-2863
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Rodney DeWayne Gregory
lllllllllllllllllllllPlaintiff - Appellant
v.
Commissioner, Social Security Administration
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 10, 2018
Filed: July 19, 2018
[Unpublished]
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Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
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PER CURIAM.
Rodney DeWayne Gregory applied for disability insurance benefits and
supplemental security income under the Social Security Act. After Gregory’s third
administrative hearing, the administrative law judge (ALJ) denied his application for
benefits, concluding that Gregory was able to perform “‘vocationally relevant’ past
employment” despite his severe medically determinable impairments.1 The Appeals
Council denied Gregory’s request for review, and he now appeals from the district
court’s2 judgment affirming the denial of benefits. We affirm.
I. Background
On October 1, 2010, Gregory applied for disability insurance benefits and
supplemental security income, stating that his disability began on August 4, 2010.
During the application process, Gregory’s reported severe impairments included
chronic obstructive pulmonary disease; endocarditis and valvular heart disease; a
history of arrhythmia; and prior heart surgeries, including two heart valve
replacement surgeries and the placement of a pacemaker.3 The bulk of Gregory’s
appeal focuses on his June 2012 heart surgery, which involved repeat aortic and
mitral mechanical valve replacements, an excision of an aortic aneurysm into his left
atrium, and the reconstruction of aortic mitral continuity. Following surgery, Gregory
continued to experience “a systolic ejection murmur,” as well as a continuation of the
aortic abscess.
During the administrative hearing, a conflict arose between the testimony of
Gregory’s treating physician, John F. Best, MD, and the ALJ’s medical expert, Joseph
R. Gaeta, MD. Dr. Best’s opinion was that Gregory should lift no more than five
pounds and should not stand, walk, or sit for more than an hour. Dr. Best also
1
Gregory appeared before an ALJ on two prior occasions, the first on
January 13, 2012, and the second on September 26, 2013. Both hearings resulted in
a remand to a different ALJ.
2
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
3
The ALJ also considered Gregory’s “positive HIV viral status, hepatitis B,
diabetes mellitus, depression, and anxiety[.]”
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recommended that Gregory not climb, balance, stoop, kneel, crouch, or bend, and
concluded that Gregory had a limited capacity to reach, handle, finger, feel, see, hear,
and speak. In a letter to Gregory’s attorneys sent shortly after the final administrative
hearing, Dr. Best expressed the opinion that “Mr. Gregory has multiple chronic
morbidities and chronic disease and is totally disabled.” In contrast to Dr. Best’s
opinion, Dr. Gaeta concluded that Gregory could lift twenty pounds occasionally and
ten pounds frequently and had no limitation on standing or sitting.4 Dr. Gaeta also
placed no restrictions on Gregory’s ability to stoop, kneel, or crouch, and did not find
any impairment in Gregory’s gross or fine motor skills.
After assessing the parties’ competing claims, the ALJ concluded that Gregory
had the residual functional capacity (RFC) to engage in work requiring a light level
of physical exertion and did not qualify for benefits. The district court affirmed,
explaining that “[s]ubstantial evidence . . . support[ed] the ALJ’s RFC determination”
and that “[a]n administrative decision is not subject to reversal simply because some
evidence may support the opposite conclusion.”
II. Standard of Review
We review the district court’s denial of social security benefits de novo.
Johnson v. Colvin, 788 F.3d 870, 872 (8th Cir. 2015). We will affirm the ALJ’s
findings if—when viewing the record as a whole—they are supported by substantial
evidence, meaning evidence that is “less than a preponderance, but enough that a
reasonable mind might accept it as adequate to support a decision.” Cox v. Apfel,
160 F.3d 1203, 1206-07 (8th Cir. 1998). When reviewing the record, we consider
both evidence that supports and detracts from the ALJ’s decision. Id. at 1207. If
substantial evidence exists to support the decision, we will not reverse, even if
substantial evidence would have supported a contrary outcome or we would have
4
Dr. Gaeta placed a three-hour limit on walking.
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decided the case differently. Andrews v. Colvin, 791 F.3d 923, 928 (8th Cir. 2015)
(quoting Cline v. Colvin, 771 F.3d 1098, 1102 (8th Cir. 2014)).
III. Discussion
Individuals who are insured for disability insurance benefits are entitled to
collect those benefits if they have not attained retirement age, have filed an
application for benefits, and have a disability. 42 U.S.C. § 423(a)(1). Disability is
defined as an “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). To determine whether an
individual has a disability, the Commissioner of Social Security engages in the
following five-step sequential evaluation:
(1) whether the claimant is presently engaged in a “substantial gainful
activity;” (2) whether the claimant has a severe impairment—one that
significantly limits the claimant’s physical or mental ability to perform
basic work activities; (3) whether the claimant has an impairment that
meets or equals a presumptively disabling impairment listed in the
regulations . . .; (4) whether the claimant has the residual functional
capacity to perform his or her past relevant work; and (5) if the claimant
cannot perform the past work, the burden shifts to the Commissioner to
prove that there are other jobs in the national economy that the claimant
can perform.
Cox, 160 F.3d at 1206 (citing Kelley v. Callahan, 133 F.3d 583, 587-88 (8th Cir.
1998)).
Gregory primarily argues that the ALJ erred at steps two and four by
underestimating the impact of the pseudoaneurysm and aortic root abscess on
Gregory’s health. Gregory asserts that the ALJ erred by giving too much weight to
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Dr. Gaeta’s opinion and insufficient weight to Dr. Best’s opinion, pointing to our
precedent that states that “[a] treating physician’s opinion should not ordinarily be
disregarded and is entitled to substantial weight,” Jenkins v. Apfel, 196 F.3d 922,
924-25 (8th Cir. 1999) (citing Ghant v. Bowen, 930 F.2d 633, 639 (8th Cir. 1991)),
and that “‘[t]he opinion of a consulting physician who examines a claimant once or
not at all does not generally constitute substantial evidence.’” Id. at 925 (quoting
Kelley, 133 F.3d at 589).
We have also explained that “‘[a] treating physician’s opinion does not
automatically control, since the record must be evaluated as a whole.’” Renstrom v.
Astrue, 680 F.3d 1057, 1064 (8th Cir. 2012) (quoting Perkins v. Astrue, 648 F.3d
892, 897 (8th Cir. 2011)). Furthermore, “‘[a]n ALJ may discount or even disregard
the opinion of a treating physician where other medical assessments are supported by
better or more thorough medical evidence, or where a treating physician renders
inconsistent opinions that undermine the credibility of such opinions.’” Id. (quoting
Perkins, 648 F.3d at 897-98). See also Winn v. Commissioner, No.17-1987, 2018
WL 3322247, at *6 (8th Cir. July 6, 2018) (“A treating physician’s opinion will be
given controlling weight ‘if, and only if, it “is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence.”’” (quoting Johnson v. Astrue, 628 F.3d 991, 994 (8th Cir.
2011))). Having viewed the record as a whole, we conclude that substantial evidence
supports the ALJ’s determination that Dr. Gaeta’s testimony was consistent with
Gregory’s medical records. Approximately one month after Gregory’s release from
the hospital for his second valve replacement surgery, Gregory reported no problems
with “palpitations, presyncope, syncope or problems with wound healing.” Two
months after his release, Gregory’s medical records show that he had “done well
overall since discharge” and that he had “gotten stronger.” At that time, Gregory also
denied “any significant breathing difficulties or chest pain.” Nearly a year after his
release, Dr. Best reported that Gregory’s “echocardiogram demonstrates near normal
size and normal function.”
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Dr. Gaeta’s medical opinion is supported by Gregory’s work history. Before
he stopped working, Gregory was employed at a gas station that had gone out of
business and had been a caretaker for a man who had passed away. Neither
employment ended because of Gregory’s physical inability to work. See Milam v.
Colvin, 794 F.3d 978, 985 (8th Cir. 2015) (stating that although claimant’s long work
history supported her “[‘]subjective complaints of disabling pain,[’]” “[‘]the fact that
[she] was laid off from her position, rather than forced out due to her condition’”
undercut her claim of disability (quoting Black v. Apfel, 143 F.3d 383, 387 (8th Cir.
1998)).
In contrast, Dr. Best’s medical opinion appears inconsistent with the medical
records. On November 25, 2014, more than two years after Gregory’s second valve
replacement surgery and Dr. Best’s evaluation that Gregory could not stand, walk, or
sit for more than an hour, Gregory reported that he had “been active out deer hunting
and not snacking.” Furthermore, no evidence supports Dr. Best’s conclusion that
Gregory has an impaired ability to see, hear, and speak. Given these circumstances,
we cannot say that the ALJ erred in weighing the doctors’ opinions as he did.
Gregory also argues that the ALJ erred in not explicitly including Gregory’s
pseudoaneurysm and aortic root abscess in the second step of the five-step sequential
evaluation. Our precedent indicates that the failure to list a specific impairment at
step two is not an error unless the impairment is “separate and apart” from the other
listed impairments. See Gragg v. Astrue, 615 F.3d 932, 939 (8th Cir. 2010) (“The
reports of [the experts evaluating claimant] are entirely consistent with the ALJ’s
determination that [claimant] had a learning disorder, and do not support [claimant’s]
argument that [the experts] concluded borderline intellectual functioning was a severe
impairment separate and apart from a learning disorder.”). The ALJ noted that
Gregory had “chronic obstructive pulmonary disease (COPD), with concurrent,
ongoing tobacco abuse; [a] history of endocarditis/valvular heart disease, status post
aortic and mitral valve replacement (2001) and redo procedures (2012); and [a]
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history of arrhythmia and pacemaker placement (2012)[.]” Nothing in the record
indicates that the pseudoaneurysm and the aortic root abscess are separate and apart
from the listed heart health issues that the ALJ considered. Furthermore, the ALJ
explicitly noted the pseudoaneurysm later in his opinion.
Gregory’s final argument is that the case should be remanded because the ALJ
did not determine whether Gregory is unemployable because he would miss too many
days of work for medical treatment. Gregory claims that his required regular medical
appointments to test his blood thickness would require him to miss two to three days
of work per month. This claim has not been substantiated, however, and the record
is unclear why Gregory would need to miss an entire day of work to have his blood
tested. Given these facts, we cannot conclude that the ALJ’s ruling was in error.
The judgment is affirmed.
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