Mattie M. Nunn v. Margaret Heckler, Secretary of Health and Human Services , 732 F.2d 645 ( 1984 )

BRIGHT, Circuit Judge.

Mattie M. Nunn appeals from a judgment of the district court¹ affirming a final decision of the Secretary of Health and Human Services (Secretary) denying her claims for disability insurance and supplemental security income benefits. For reversal, Nunn contends that the Secretary’s decision is unsupported by substantial evidence. For the reasons that follow, we reverse.

Nunn was born on June 16, 1924 and has an eighth grade education. From 1968 until 1979 she worked at a hospital as a housekeeper and head linen clerk. Her duties as head linen clerk required her to walk five hours a day and lift and carry stacks of linen weighing up to twenty pounds.

On February 6, 1980, Nunn filed applications for disability benefits, alleging she was unable to work due to a sprained back. The applications were denied initially and on reconsideration. On December 2, 1980, Nunn testified before an administrative law judge (AU), who denied benefits. Nunn sought judicial review. Because the transcript of the administrative hearing could not be prepared, the district court remanded the case for further administrative proceedings.

On November 23, 1981, Nunn appeared before the same AU. At the hearing, Nunn testified that she had constant and severe pain in her back, hands, wrists, and other joints, swelling in her hands and legs, weakness in her legs, shortness of breath, and dizziness. She stated that she was unable to walk, stand, or sit for any length of time. In addition, she stated that she fell frequently and, as a result of a fall in 1979 or 1980, she fractured her ribs. In attempts to alleviate the pain, Nunn took several different medications, injections, heat treatments, and physical therapy. Nunn testified, however, that she had not obtained any relief. She stated she was unable to perform any housework and only left her home to attend church once a week.

On December 11, 1979, Nunn was examined by Dr. Michael Richmond. Nunn complained of low back pain and reported that she had injured her back while lifting bags of laundry at work. Physical examination demonstrated “exquisite” tenderness in her lumbar spine. X-ray examination demonstrated spina bifida. On January 2, 1980, Dr. Richmond hospitalized Nunn, who continued to complain of low back pain. After bed rest, physical therapy, and medication, Nunn was discharged in one week as improved.

On February 1, 1980, Nunn was still in pain and was examined by Dr. Joseph Sudekum. Dr. Sudekum also reported that Nunn had tenderness in her spine and a decreased range of motion because of pain. Dr. Sudekum diagnosed lumbar strain and believed that Nunn should avoid lifting objects weighing more than fifteen pounds.

At the request of the Secretary on May 29, 1980, Dr. Harry Acker examined Nunn, who complained of low back pain, weakness in her legs, and “crazy” headaches. Dr. Acker reported that it was difficult to evaluate her complaints but noted that x-ray examination demonstrated mild scoliosis.

Since June 1980 Dr. Robert Poetz has treated Nunn. In June and December of 1980, Dr. Poetz admitted Nunn to Normandy Osteopathic Hospital to evaluate and treat her complaints of pain. By letter of November 17, 1981, Dr. Poetz diagnosed her as having degenerative joint disease of the lumbar spine, knees, and ankles, cardiomegaly, hypertension, and heart disease. He stated that Nunn had difficulty walking and was unable to sit or stand for any period of time without experiencing pain. Dr. Poetz believed that Nunn would be unable to be gainfully employed because of her multiple physical problems. Dr. Poetz enclosed office notes which reveal numerous office visits for complaints of pain, refills of medication, and injections. An October 11, 1980 entry indicates that Nunn fell after experiencing pain in her leg and suffered bruised ribs with a possible fracture. In addition, a report prepared by the doctor’s office personnel states that Nunn had received physical therapy treatment three times a week from approximately July 1980 through April 1981.

At the Secretary’s request, on January 11, 1982, Dr. Daniel Murphy examined Nunn to evaluate her complaints of shortness of breath. After a physical examination, an electrocardiogram stress test, and a chest x-ray, Dr. Murphy suspected that Nunn had either coronary insufficiency, pleurisy, or chest wall syndrome. Dr. Murphy completed a residual functional capacity (RFC) checklist and indicated that during the course of an eight hour day, Nunn could sit five hours, walk two hours, and stand one hour, and occasionally lift and carry up to ten pounds.

On January 23, 1982, Dr. C.B. Powell also examined Nunn at the Secretary’s request. After physical and x-ray examination, Dr. Powell found no significant evidence of arthritis, a good range of motion in her joints, and believed that “her complaints are exaggerated and that she has no significant objective evidence of disability.” On a RFC checklist, Dr. Powell indicated that Nunn could sit eight hours a day, stand and walk four hours, and occasionally lift and carry twenty pounds.

The AU denied benefits, finding that Nunn could return to her past work as a head linen clerk, which he characterized as light work. The AU found that Nunn’s complaints of disabling pain were not credible. In discounting her allegations of severe pain, the AU noted that he had observed her appearance and demeanor at two administrative hearings, that Nunn’s testimony concerning her fall in 1980 was unsupported by the medical evidence, and that Nunn “wore no dentures at the hearing [which] obviously enhanced the pathetic image she was attempting to project.” The AU also stated that “the most compelling evidence” against Nunn was that the “overall objective medical evidence [did not] justif[y] the extreme intensity, frequency or duration of the pain and discomfort which the claimant alleges.” In finding that Nunn could return to her past work as a linen clerk, the AU relied on the opinion of and the RFC checklist completed by Dr. Powell, one of the Secretary’s consulting physicians, and rejected the opinions of Dr. Murphy, another consulting physician, and Dr. Poetz, Nunn’s treating physician.

It is well established in this circuit that an AU may not disregard a claimant’s subjective complaints of pain “solely because the objective medical evidence does not fully support them.” O’Leary v. Schweiker, 710 F.2d 1334, 1342 (8th Cir. 1983). “Although the AU may reject testimony on the basis of credibility, such rejection must be supported by legitimate reasons for disbelief and cannot be a guise for circumventing the rule that objective evidence is not needed to support subjective evidence of pain.” Tome v. Schweiker, 724 F.2d 711 at 713 (8th Cir.1984). In assessing allegations of pain, an AU may consider any inconsistencies in the record, Isom v. Schweiker, 711 F.2d 88, 90 (8th Cir.1983); frequency and type of medication and treatment, Weber v. Harris, 640 F.2d 176, 178 (8th Cir.1981); daily' activities, Reiland v. Harris, 645 F.2d 11, 13 (8th Cir.1981); and a claimant’s appearance and demeanor at the administrative hearing, Ballowe v. Harris, 650 F.2d 130, 133 n. 2 (8th Cir.1981) (per curiam). In addition, “[a] claimant with a good work record is entitled to substantial credibility when claiming an inability to work because of a disability.” Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir.1983).

In this case, we find the AU’s proffered reasons for disbelieving Nunn’s allegations of pain are unsupported, and, in some instances, contradicted by the record. First, the AU placed great emphasis on his perception that Nunn was attempting to create a “pathetic” image at the hearing. Although, as noted above, an AU may consider a claimant’s appearance and demean- or at the hearing, an AU “may not reject a claimant’s allegation of severe pain solely because of [her] appearance at the hearing * * *.” Ballowe v. Harris, 650 F.2d at 133 n. 2. Second, the AU stated that there was no medical evidence to substantiate Nunn’s testimony of a fall in which she fractured her ribs. However, Dr. Poetz’ office notes of October 11, 1980 clearly stated that Nunn was being treated as a result of a fall in which she bruised and possibly fractured her ribs. We believe that the reasons offered by the AU were merely a guise for his belief that the “overall objective medical evidence” did not fully support Nunn’s complaints. However, there was objective medical evidence of a back impairment and possible chest condition. As has been stated, “[a] back condition may affect one individual in an inconsequential way, whereas the same condition may severely disable another person who has a greater sensitivity to pain or whose physical condition * * * is generally deteriorated.” Landess v. Weinberger, 490 F.2d 1187, 1190 (8th Cir.1974). In this case, there is no evidence of malingering. To the contrary, claimant has a consistent work record and has persistently attempted to alleviate her pain by repeated hospitalizations, outpatient appointments, medications, injections, traction, and physical therapy treatments.

In the circumstances of this case, the AU’s reliance on the opinion of and the residual functional capacity checklist completed by Dr. Powell, a consulting physician who only examined claimant on one occasion, cannot constitute substantial evidence on the record as a whole to support the finding that Nunn could return to her past work as head linen clerk, a job which required her to walk at least five hours a day. See McCoy v. Schweiker, 683 F.2d 1138, 1147 n. 8 (8th Cir.1982) (en banc) (“as a general rule little weight is afforded RFC checklists * * * and reports of consulting physicians who examine the claimant on only one occasion”) (citations omitted). Even Dr. Murphy, another consulting physician, believed Nunn could only walk two hours a day. Dr. Poetz, Nunn’s treating physician, believed she was totally disabled and in support of his opinion supplied his records to document that she had repeatedly visited his office complaining of pain. Thus, the opinion of the AU in this case does not show a proper credibility basis for rejecting Nunn’s complaints of pain.

When a claimant has demonstrated an inability to return to her former work, the burden shifts to the Secretary to establish the presence of other jobs in the national economy that a claimant can perform. O’Leary v. Schweiker, 710 F.2d at 1337. In this case, the Secretary did not satisfy her burden by submitting a hypothetical question to a vocational expert in order to determine whether jobs exist in the national economy for Nunn. See Simonson v. Schweiker, 699 F.2d 426, 430 (8th Cir.1983) (when a claimant presents evidence of significant pain, the Secretary must present vocational testimony to establish the availability of jobs).

Accordingly, we reverse and vacate the judgment of the district court with instructions to remand this case to the Secretary for further consideration in light of the opinion.²

1 . The Honorable John F. Nangle, Chief Judge, United States District Court for the Eastern District of Missouri.

2 . We note that the AU characterized Nunn’s past work as a head linen clerk as light work. The Secretary’s regulations may support a finding of disability for Nunn as a person of advanced age (55 and older), with a limited education (seventh through eleventh grade) and either unskilled work experience or nontransferable work skills. See 20 C.F.R. Part 404, Subpart P, Appendix 2, Rules 201.01-02. We leave this matter to the Secretary's further consideration.