Nancy Kelley v. John J. Callahan

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-2142
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Nancy Kelley, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
John J. Callahan, Acting Commissioner, *
Social Security Administration, *
*
Appellee. *
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Submitted: October 23, 1997
Filed: January 7, 1998
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Before MCMILLIAN, FLOYD R. GIBSON, and BEAM, Circuit Judges.
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BEAM, Circuit Judge.
Nancy Kelley appeals the district court's affirmance of a denial of Social Security
benefits. Because the record does not contain substantial evidence to support the
findings of the Administrative Law Judge (ALJ), we reverse and remand for further
proceedings.
I. BACKGROUND
Kelley is fifty-three years old. She was previously employed as a telephone line
repair person and a telephone repair dispatcher. She has one year of junior college.
She suffers from a history of lupus,1 fibromyalgia,2 chest pain, ulcers, irritable bowel
syndrome, high cholesterol, pain due to a pronated ankle, and atypical heart pain.
In November 1992, Kelley's employer downsized and Kelley's position as a
dispatcher was eliminated. At that time, several people were offered positions with the
company in another town. Kelley was not offered a job. She was told that her
excessive absenteeism was the reason. She had missed twenty-seven days of work in
about five months. Kelley testified that these absences were due to illness and her
employer did not dispute that fact. Before her job was eliminated, Kelley's employer
had accommodated her health problems by allowing her to lie down several times a day
on a cot that had been provided for her. Kelley testified that she would have received
a pension if she had been able to continue working for three more years.
On May 20, 1993, Kelley applied for disability benefits alleging that she has
been disabled since November 20, 1992. Her application was denied both initially and
on reconsideration. She then requested a hearing before an ALJ.
1
Lupus, also known as systemic lupus erythematosus (SLE) is "a chronic,
remitting, relapsing, inflammatory, and often febrile multisystemic disorder of
connective tissue, acute or insidious in onset, characterized principally by involvement
of the skin, joints, kidneys, and serosal membranes." See Dorland's Illustrated Medical
Dictionary 964 (28th ed. 1994) (Dorland's).
2
Fibromyalgia is muscle pain in fibrous tissues. Stedman's Medical Dictionary
222 (4th ed. 1976). It is a degenerative disease which results in symptoms such as
achiness, stiffness, and chronic joint pain. See Cline v. Sullivan, 939 F.2d 560, 567
(8th Cir. 1991).
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At the hearing, Kelley testified that she is in almost constant pain in her shoulders,
back and legs. She also suffers from exhaustion. She can only walk about half a block
because of pain in her foot and ankle and cannot stand for very long. She testified that
she can sometimes drive an hour and a half from her home to Des Moines for doctors'
appointments, but that she has to stop and rest on the way. She usually stays overnight
in Des Moines because she is unable to drive both ways in one day. She stated she can
rarely sleep through the night because of pain. She has had to hire housecleaning help
and is unable to do any gardening. Her adult children help her with the shopping. She
is unable to handle the stress of having her grandchildren around. Several times a month
she suffers from stomach sickness and vomiting as a result of an esophageal ulcer. She
also suffers from a hiatal hernia that causes heartburn and loss of sleep. She testified
that she has chest pain about six times a month. She also testified that she would be
unable to sit for an hour without a break, and that even with a break, it would be painful
for her to do so.
The medical evidence shows that Kelley has been treated for many years by five
physicians: Dr. Dale J. Andringa, a general practitioner; Dr. M.G. Parks, a general
practitioner; Dr. Theodore W. Rooney, a rheumatologist; Dr. Joel A. From, a
cardiologist; and Dr. Bernard I. Leman, a gastroenterologist. Kelley first sought medical
treatment for lupus in 1981. Her symptoms then included darkening of the palms of her
hands, pleurisy-like3 chest pains, joint aches, and rashes. At that time she had a positive
ANA test,4 and was treated for arthralgia5 and left-sided pleuritic chest pain. She either
contacted or was examined by Drs. Andringa and Parks, for various
3
Pleurisy is an inflammation of the pleura, the serous membrane investing the
lungs and lining the thoracic cavity. Dorland's at 1306-07.
4
ANA stands for antinuclear antibodies. Antinuclear antibodies are directed
against nuclear antigens; ANA are almost invariably found in systemic lupus
erythematosus and are frequently found in rheumatoid arthritis, scleroderma, and mixed
connective tissue diseases. Dorland's at 93
5
Arthralgia is pain in a joint. Dorland's at 140.
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complaints, including myalgia6 and back pain, over one hundred additional times
between 1980 and 1992. Dr. Parks stated in 1993 that Kelley's "physical capacity is
limited," and suggested environmental limitations, particularly avoidance of cold or damp
conditions. He stated she was "unable to stand or walk for long periods of time due to
the legs hurting." He also found that "[w]hen she attempts to sit, she has significant pain
in her back and [is] unable to sit due to the pain." He further found her unable to stoop,
crawl, or kneel due to pain in her lower extremity joints and found that she had difficulty
in handling objects because of significant joint pain in her hands.
Kelley visited Dr. Rooney numerous times beginning in 1987. At that time he
reported a "longstanding history of upper and low back pain" and a "history of SLE
(systemic lupus erythematosus) without evidence of significant target organ
involvement." He noted that the SLE had been inactive for six years. His findings were
"suggestive with the periarticular trigger points of fibromyalgia and soft tissue myofascial
strain." In 1990, he wrote that Kelley could not "walk 200 feet without assistance" and
that this was a permanent condition. In 1992, he again noted fibromyalgia, with
radicular right leg pain. In 1993, he wrote that, due to multiple tender points, Kelley "is
going to be somewhat limited in her ability to perform certain activities." An MRI of
Kelley's back showed mild degeneration of the L5 and S1 discs, probable mild
arthropathy, and noncompressive central protrusion. Dr. Rooney completed a disability
checklist and indicated that Kelley would not be able to work more than a four-hour day.
Dr. From, a cardiologist, wrote in 1993 that it would be difficult for Kelley "to do
standing, walking, sitting, stooping, climbing, kneeling, and crawling due to her leg brace
and becoming fatigued attempting to do these different positions." He further stated,
"[d]ue to her continual angina symptoms, it would not be advisable for her to
6
Myalgia is pain in a muscle or muscles. Dorland's at 1085.
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be in very cold or very warm temperatures or exposed to dust, fumes, or other hazards."
Dr. From advised Kelley to stop smoking.
Kelley's records were reviewed by several consultative physicians, none of whom
examined Kelley. Those doctors questioned Kelley's SLE diagnosis and concluded that
she was not disabled.
A vocational expert also testified at the hearing. He was asked in a hypothetical
question to assume a worker had possible lupus erythematosus, fibromyalgia, chest
discomfort and a braced left foot. He was also asked to assume she could occasionally
lift twenty pounds, frequently lift ten pounds, could stand for one hour and sit for two
hours, could walk one hour, could occasionally climb, bend, stoop, squat, twist, kneel,
and crawl, but that she could not use left foot controls or be exposed to extremes of heat
or cold. He testified this person could perform the duties of a telephone repair
dispatcher. In a second hypothetical, he was asked whether a person with a ten-pound
weight limitation and a half-hour limitation on sitting could perform the functions of a
dispatcher and he answered "no." Similarly, he stated that a person with a four-hour
workday limitation could not perform the dispatcher functions.
After the hearing, the ALJ found that Kelley was not under a disability as defined
in the Social Security Act and denied her application. The ALJ discounted Kelley's
complaints of pain and fatigue as inconsistent with objective findings. She found Kelley
was not credible, noting "[i]t is anyone's guess whether [Kelley's] absences were
medically necessary or just job 'burnout.' Lack of motivation does not qualify one for
disability. There is no support that this claimant's absences were medically necessary."
She concluded, "[t]he undersigned can only conclude that Ms. Kelley failed to go to
work whenever she did not 'feel' like it" and "[w]hether or not the absenteeism is related
to her illness or a lackadaisical nature has not been established." She found the opinion
of Dr. Rooney, Kelley's treating rheumatologist, was not persuasive, in part because he
had not hospitalized Kelley. The ALJ also put great weight on Kelley's
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failure to quit smoking, although doctors had advised her to do so. The ALJ thus found
that Kelley's impairments would not prevent her from returning to her past work as a
dispatcher. The Appeals Council affirmed the decision, as did the district court.
II. DISCUSSION
We will affirm the ALJ's findings if supported by substantial evidence on the
record as a whole. See Matthews v. Bowen, 879 F.2d 422, 423-24 (8th Cir. 1989).
Substantial evidence is less than a preponderance, but enough that a reasonable mind
might accept as adequate to support a decision. See Lawrence v. Chater, 107 F.3d 674,
676 (8th Cir. 1997). The review we undertake is more than an examination of the record
for the existence of substantial evidence in support of the Commissioner's decision, we
also take into account whatever in the record fairly detracts from the decision. See Cline
v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991).
To receive disability benefits, Kelley must establish a physical impairment lasting
at least one year that prevents her from engaging in any gainful activity. See Ingram v.
Chater, 107 F.3d 598, 600 (8th Cir. 1997). The Commissioner utilizes the familiar five-
step sequential evaluation to determine disability under which he determines: 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 (if so, the claimant is disabled without regard to age, education, and work
experience); 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. See id.
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The ALJ found that Kelley suffered from severe impairments including a history
of lupus, fibromyalgia, chest discomfort, and a need to wear a brace on her left foot, but
that she did not have an impairment that met the presumptively disabling listings. She
found "the testimony of the claimant, her son and daughter could not be afforded full
credibility due to numerous inconsistencies in the record as a whole." She thus found
Kelley retained the residual functional capacity to perform work-related activities except
for work involving lifting more than twenty pounds occasionally or ten pounds
repeatedly. She found Kelley could stand for one hour and sit for one hour with the
usual breaks and that she should be able to move if needed. She also found Kelley could
occasionally climb, bend and stoop. The ALJ limited Kelley's exposure to extremes of
heat or cold. With those restrictions, the ALJ found that Kelley could return to her
former work, noting that her past relevant work did not require the performance of any
activities precluded by the limitations.
In arriving at that conclusion, the ALJ discredited Kelley's testimony regarding the
extent of her pain. When assessing the credibility of a claimant's subjective allegations
of pain, the ALJ must consider the claimant's prior work history; daily activities;
duration, frequency, and intensity of pain; dosage, effectiveness and side effects of
medication; precipitating and aggravating factors; and functional restrictions. See
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When an ALJ rejects a
claimant's complaints of pain, he or she must make an express credibility determination
detailing reasons for discrediting the testimony, must set forth the inconsistencies, and
must discuss the Polaski factors. See Cline, 939 F.2d at 565. In this case, the ALJ did
not adequately detail the inconsistencies that she relied upon to disbelieve Kelley's
testimony.
The ALJ first stated that Kelley had not provided documentation for her many
absences and speculated that she "failed to go to work whenever she did not 'feel' like
it." Kelley was not required to document her absences. She testified that she missed
work because she was sick and there is nothing in the record to suggest that this was
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not the case. Her employer conceded that her absences were legitimate. The record is
replete with evidence of her many illnesses and doctor visits.
The ALJ also discredited Kelley's complaints of pain because she had continued
working for several years in spite of her limitations. Kelley testified that she continued
working for as long as she could in an effort to be eligible for her pension. The
presumption that a claimant is not disabled merely because the claimant had a lenient
employer, a high tolerance for pain, or no other means of support would unfairly shift the
burden of proof back onto the claimant at a point in the proceedings when the burden
rightfully belongs on the Commissioner. See Cline, 939 F.2d at 566. The record shows
that Kelley's continued employment was only through the good graces of her employer.
The accommodations that the employer offered Kelley serve to corroborate her
testimony regarding her pain and fatigue. Her largely passive work responsibilities are
not inconsistent with her testimony regarding her pain and with the medical evidence that
describes a degenerative condition.
We find that Kelley's daily activities are also consistent with her complaints of
disabling pain. Uncontroverted evidence shows that Kelley is unable to perform many
of the daily activities she once enjoyed. She testified that although she is able to take
care of her daily needs, she needs help with housework and shopping. This court has
repeatedly stated that a person's ability to engage in personal activities such as cooking,
cleaning, and hobbies does not constitute substantial evidence that he or she has the
functional capacity to engage in substantial gainful activity. See Hogg v. Shalala, 45
F.3d 276, 278 (8th Cir. 1995).
Although a claimant's allegations of disabling pain may also be discredited by
evidence that the claimant has received minimum medical treatment and/or has taken
only occasional pain medications, such is not the case with Kelley. See Cline, 939 F.2d
at 568. Again, the record shows numerous visits to doctors. She testified that she
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takes many prescription medications.7 She has availed herself of many pain treatment
modalities, including a TENS unit, physical therapy, trigger point injections of cortisone,
chiropractic treatments, and nerve blocks. In addition, she has had several surgeries and
many diagnostic tests, including X-rays, CT scans, DNA tests, MRIs, and blood work.
In addition to discrediting Kelley's complaints, the ALJ also disregarded the
opinions of Kelley's treating physicians and instead credited the opinions of consultative
physicians who had not examined Kelley. A treating physician's opinion is generally
entitled to substantial weight, although it is not conclusive and must be supported by
medically acceptable clinical or diagnostic data. See Pena v. Chater, 76 F.3d 906, 908
(8th Cir. 1996). The Commissioner is encouraged to give more weight to the opinion
of a specialist about medical issues related to his or her area of specialty than to the
opinion of a source who is not a specialist. See Metz v. Shalala, 49 F.3d 374, 377 (8th
Cir. 1995). The opinion of a consulting physician who examines a claimant once or not
at all does not generally constitute substantial evidence. See id. at 378. Here, Kelley's
treating physicians' diagnoses are amply supported by clinical data. Kelley's principal
diagnosis at present is fibromyalgia and that diagnosis is clinically supported by the
trigger point injections. Fibromyalgia, which is pain in the fibrous connective tissue
components of muscles, tendons, ligaments, and other white connective tissues, can be
disabling. See Cline, 939 F.2d at 567. It often leads to a distinct sleep derangement
which often contributes to a general cycle of daytime fatigue and pain. See id. at 563.
The ALJ also rejected Kelley's treating physician's four-hour day restriction. The
assumption that physicians cannot opine as to the hours a claimant can work is wrong.
See Smallwood v. Chater, 65 F.3d 87, 89 (8th Cir. 1995). Physicians regularly make
7
These include Premarin, Zocor, Tagamet, Lozol, Dilacor, Amitriptyline,
Metoclopramide, Ketoprofen, and Nitrostat.
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such assessments. See id. In fact, medical opinions on how much work a claimant can
do are not only allowed, but encouraged. See id. A vocational expert must then take
into account medical limitations, including opinions on work time limits, and offer an
opinion on the ultimate question whether a claimant is capable of gainful employment.
See id. The opinion of a treating specialist controls if it is well supported by medically
acceptable diagnostic techniques and is not inconsistent with the other substantial
evidence. See id. As noted above, Dr. Rooney's recommendation is supported by
medically acceptable diagnostic techniques and is not inconsistent with the other medical
testimony or Kelley's testimony.
The ALJ also emphasized Kelley's failure to quit smoking as a reason to deny
benefits. Impairments that are controllable or amenable to treatment do not support a
finding of disability, and failure to follow a prescribed course of treatment without good
reason can be a ground for denying an application for benefits. See Kisling v. Chater,
105 F.3d 1255, 1257 (8th Cir. 1997). Although Kelley's cardiologist advised her to quit
smoking, he did not state that her smoking was the cause of her problems or that her
complaints would be relieved by quitting smoking. Although she would undoubtedly
improve her general health and well-being by doing so, there is no evidence that her
musculoskeletal complaints would be affected. Under the circumstances of this case, we
are reluctant to deny benefits solely because of Kelley's failure to quit smoking.
III. CONCLUSION
The ALJ improperly evaluated Kelley's subjective complaints of pain and failed
to give proper weight to the opinions of her treating physicians. Accordingly, we
reverse the judgment. However, because the ALJ concluded that Kelley could return to
her prior work, no proper record was developed regarding whether the Commissioner
can meet his burden of showing that there are other jobs in the national economy that
Kelley can perform. Accordingly, the judgment is reversed and this case
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is remanded to the district court with directions to remand it to the Commissioner for
further proceedings consistent with this opinion.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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