Penny M. Thunburg v. Kenneth Apfel

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3496
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Penny M. Thunburg, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Kenneth S. Apfel, Commissioner, *
Social Security Administration, * [UNPUBLISHED]
*
Appellee. *
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Submitted: July 28, 2000
Filed: August 3, 2000
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Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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PER CURIAM.
Penny Thunburg appeals the District Court’s1 grant of summary judgment in
favor of the Social Security Commissioner, upholding the decision to deny Thunburg’s
application for disability insurance benefits. Having carefully reviewed the record, see
Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000) (standard of review), we affirm.
1
The Honorable Jerry W. Cavaneau, 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) (1994 & Supp. IV 1998).
Thunburg applied for benefits in November 1995, alleging that she could not
work because of back and left-side pain, rectal bleeding, migraines, and asthma. After
her applications were denied initially and upon reconsideration, a hearing was held
before an administrative law judge (ALJ). The ALJ concluded Thunburg was capable
of performing certain light work identified by a vocational expert (VE) at the hearing,
and thus she was not disabled.
On appeal, Thunburg argues that the ALJ’s mental residual functional capacity
(RFC) findings are not supported by the record in light of Dr. Robert Yoder’s global-
functioning rating2 and the finding of Dr. Kathryn Gale (a Social Security
Administration physician) that Thunburg was often deficient in concentration,
persistence, or pace. She also asserts that the ALJ did not explain his mental RFC
findings or his discounting of Dr. Yoder’s opinion. We disagree. The ALJ was not
required to adopt Dr. Yoder’s rating because it was inconsistent with Thunburg’s
treating psychiatrist’s records and unsupported by Dr. Yoder’s own notes and
Thunburg’s hearing testimony. See Pierce v. Apfel, 173 F.3d 704, 707 (8th Cir. 1999)
(government does not have to live with expert’s conclusions simply because
government hired expert to evaluate claimant; ALJ may reject expert’s conclusions if
they are inconsistent with record as whole); cf. Johnson v. Chater, 87 F.3d 1015, 1018
(8th Cir. 1996) (where treating physician’s opinion is itself inconsistent, it should be
accorded less deference). The ALJ specifically referred to Dr. Yoder’s evaluation, and
thus it is likely he considered and rejected the global-functioning rating. See Black v.
Apfel, 143 F.3d 383, 386 (8th Cir. 1998). As to the ALJ’s explanation of his mental
RFC findings, although we question his explanation, we find his ultimate
2
Dr. Yoder, a consulting psychiatrist, rated Thunburg at 30, meaning her
behavior is considerably influenced by delusions or hallucinations, or she has serious
impairment in communication or judgment, or she is unable to function in almost all
areas (“e.g., stays in bed all day; no job, home, or friends”). See American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994)
(DSM-IV).
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conclusion—that Thunburg could perform specific light-work jobs—supported by
substantial evidence in the record as a whole. Even giving Thunburg the benefit of Dr.
Gale’s “often deficient” rating, such a rating is not incompatible with the ability to
perform a work-related function, see 20 C.F.R. § 404.1520a(b)(3) (1999), and, after
rating Thunburg’s abilities to perform work-related functions, Dr. Gale concluded she
was capable of performing specific types of jobs.
Relying on certain sections of the Programs Operations Manual System (POMS),
Thunburg seems to contend that the ALJ’s RFC findings mandate a conclusion that she
is disabled. Two of the cited sections, however, relate to sedentary—not light—work.
Moreover, the POMS guidelines are not binding. See Berger v. Apfel, 200 F.3d 1157,
1161 (8th Cir. 2000). Thunburg also asserts she cannot perform light work because she
walks with a cane, see 20 C.F.R. § 404.1567(b) (1999) (light work may require "a good
deal of walking"), but she reported that she walked one to two miles a day and that her
physician had advised her to do so. Moreover, the ALJ’s conclusion that she could
perform certain light-work jobs was based on his hypothetical to the VE which
included some walking limitations.
We further conclude that the ALJ properly discredited Thunburg’s subjective
complaints to the extent alleged, see Gray v. Apfel, 192 F.3d 799, 803-04 (8th Cir.
1999); that his hypothetical to the VE was adequate, see Prosch, 201 F.3d at 1015; and
that he properly considered the combination of Thunburg’s impairments, see Hajek v.
Shalala, 30 F.3d 89, 92 (8th Cir. 1994).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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