Steven Owen v. Michael Astrue

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1172
___________
Steven T. Owen, *
*
Appellant, *
* Appeal from the United States
v. * District court for the
* Southern District of Iowa.
Michael J. Astrue, Commissioner *
of Social Security *
*
Appellee. *
___________
Submitted: September 24, 2008
Filed: December 29, 2008
___________
Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
___________
SMITH, Circuit Judge.
Steven Owen appeals the district court's1 affirmance of the administrative law
judge's (ALJ) denial of Owen's applications for disability insurance benefits (DIB) and
supplemental security income (SSI) for the period of July 25, 1999, to February 14,
2002. Owen contends that the ALJ incorrectly weighed the medical opinions of his
treating and consultative physicians. He also argues that the ALJ erred in omitting
1
The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
drowsiness from the ALJ's residual functional capacity (RFC) finding. We affirm the
judgment of the district court.
I. Background
Owen has sought treatment for lower back pain since at least 1986. Between
October 1998 and February 2002, Owen regularly visited Dr. Steven Paulsrud, who
prescribed painkillers and muscle relaxants and administered steroid injections for
Owen's condition. An MRI of Owen's lower back performed in November 1998
revealed "[m]ild discogenic changes at the L2-3 level with no focal disc herniation."
In December 1998, Dr. Paulsrud noted that although the MRI revealed no significant
pathology, Owen was experiencing back pain with radiation into his right leg.
Owen attended an initial physical therapy evaluation in January 1999, but he
failed to attend his subsequent physical therapy appointments. In March 1999, Dr.
Paulsrud observed that Owen was suffering from "mild" lower back pain but was
"doing very well" and had good strength and range of motion. Dr. Paulsrud also
encouraged Owen to quit smoking and modify his diet, but Dr. Paulsrud noted the
following month that Owen would not follow regular exercise or dietary plans. In July
1999, less than three weeks prior to the alleged disability onset date, Dr. Paulsrud
observed that Owen's back pain was intermittent. Shortly after the alleged disability
onset date, Dr. Paulsrud noted that Owen had increased his activity and, despite his
continuing lower back pain, was "doing better."
Owen visited Dr. Rhea Allen, who had treated him for a hand injury in July
1998, for a consultative examination in March 2000. Dr. Allen noted that Owen
suffered from lower back pain but handled his daily living activities independently.
Based on a physical examination and a review of various treatment notes and the
November 1998 MRI, Dr. Allen concluded that Owen could (1) lift ten pounds
frequently and 20 pounds occasionally; (2) carry 15 pounds occasionally; (3) stand for
an entire workday, given normal breaks; (4) walk for up to four hours each workday;
-2-
(5) sit in a chair with a backrest without limitation, given normal breaks; and (6)
stoop, climb, kneel, and crawl occasionally. Although Dr. Allen recommended that
Owen avoid work requiring highly repetitive, forceful gripping and grasping, she
stated that he could perform light manufacturing work.
In May 2000, Dr. J.D. Wilson, a medical consultant for the Iowa Disability
Determination Services Bureau, completed an RFC assessment form for Owen. Dr.
Wilson reached similar conclusions regarding Owen's physical limitations as had Dr.
Allen and explained that he had given "great weight" to Dr. Allen's opinions and
recommendation.
When Owen returned to Dr. Paulsrud in May 2000, Dr. Paulsrud encouraged
Owen "to try to get back to work." Dr. Paulsrud completed an RFC assessment form
in which he indicated that Owen's condition would likely cause him to be absent from
work about four days a month. Dr. Paulsrud referred Owen to physical therapy. Owen
attended the initial physical therapy evaluation but then cancelled six consecutive
physical therapy appointments.
Dr. Robert Knox completed an RFC assessment form in June 2000, finding
Owen's alleged limitations to be inconsistent with his activities of daily living. Dr.
Knox indicated that Owen could (1) lift 25 pounds frequently and 50 pounds
occasionally; (2) stand and walk for about six hours each workday, given normal
breaks; (3) sit for about six hours each workday, given normal breaks; and (4) push
and pull without limitation.
Dr. Paulsrud completed an RFC assessment form in August 2000, concluding
that Owen (1) could lift ten pounds occasionally; (2) could sit or stand for 60 minutes
before changing position; (3) could stoop, crouch, and climb stairs occasionally; (4)
had limited ability to reach overhead, push, and pull; (5) should never climb ladders;
(6) should avoid working with machinery, at extreme temperatures, and at heights;
-3-
and (7) would likely be absent from work more than three times a month because of
his condition.
In January 2001, Dr. Paulsrud completed an RFC assessment form in which he
indicated that Owen (1) could lift ten pounds frequently and occasionally; (2) could
stand and walk for about four hours each workday, given normal breaks; (3) could sit
for about four hours each workday, given normal breaks; (4) could climb stairs
occasionally; (5) could never twist or climb ladders; (6) could sit or stand for 30
minutes before changing position; and (7) must walk around for five minutes every
half hour.
An MRI of Owen's lower back performed in October 2001 revealed "[m]ild L2-
3 degenerative disc disease without significant interval change" and "[m]inimal left
posterolateral L4-5 disc protrusion." Dr. Paulsrud completed a fourth RFC assessment
form that month, finding that Owen experienced sedation and drowsiness for one to
two hours as side effects of his medication and that Owen could work no more than
four hours a day "to start." In November 2001, Owen received an epidural steroid
injection and was instructed to limit his activity for two to three days and to avoid
heavy lifting.
On February 7, 2002, one week before the end of Owen's alleged disability
period, Owen informed Dr. Paulsrud that he had recently fallen on ice and was
experiencing neck and leg pain. On February 17, 2002, three days after the end of the
alleged disability period, Owen visited the emergency room with severe back pain. At
the end of February 2002, Dr. Paulsrud noted that Owen was unable to stay in one
position for more than 45 minutes.
In a letter to Owen's attorney dated March 13, 2002, Dr. Paulsrud stated that
Owen's two MRIs revealed "degenerative disk disease caus[ing] a bone-to-bone
contact in [Owen's] lumbar spine." Dr. Paulsrud also explained that Owen would
-4-
initially need to limit any work to four hours a day and that it is difficult for
individuals with Owen's condition to find employment unless they are retrained for
clerical work. In June 2002, Dr. Wilson completed another RFC assessment form and
stated that the "liberal recommendations" contained in Dr. Paulsrud's March 13 letter
were not supported by Owen's medical record and that Owen's complaints were not
supported by the October 2001 MRI.
At Owen's hearing before the ALJ on October 29, 2001, a vocational expert
responded to a number of hypothetical questions based primarily on Dr. Allen's and
Dr. Paulsrud's assessments of Owen's physical limitations. First, the vocational expert
testified that the limitations set forth by Dr. Allen following her March 2000
consultative examination would preclude performance of Owen's previous duties as
a construction worker and foundry worker but would allow him to perform the duties
of a parking attendant, rental clerk, and cashier II (clerical). Second, the vocational
expert testified that Owen could perform the duties of a parking attendant, arcade
attendant, and survey worker if Owen (1) could lift ten pounds frequently and
occasionally; (2) could stand and walk for up to four hours each day; (3) could sit for
up to four hours each day with changing of position every 60 minutes; (4) could not
twist or use ladders; (5) could stoop, crouch, work overhead, push, and pull
infrequently; (6) could climb steps occasionally; (7) could not be exposed to extreme
temperatures; and (8) could not work around machinery or at heights. These
limitations were derived from Dr. Paulsrud's August 2000 and January 2001 RFC
assessment forms.
The vocational expert also testified, however, that if the second hypothetical
were amended so that Owen had to change position every 30 minutes and walk around
for five minutes after 30 minutes of sitting—limitations expressed in Dr. Paulsrud's
January 2001 RFC assessment form—then he would be unable to perform any
unskilled jobs. Furthermore, based on limitations set forth in Dr. Paulsrud's May 2000,
August 2000, and October 2001 RFC assessment forms, the vocational expert testified
-5-
that Owen would be unable to perform any job if he had to miss more than three days
of work each month or could work only four hours each day. Finally, the vocational
expert testified that Owen would be unable to perform any job if he were unable to
stay awake, a limitation apparently based on Owen's testimony at the hearing that his
medication "puts [him] to sleep" and on Dr. Paulsrud's statement in his October 2001
RFC assessment form that Owen experienced sedation and drowsiness as side effects
of his medication.
In his December 23, 2004, decision concluding that Owen was not disabled
from July 25, 1999, to February 14, 2002, the ALJ followed the five-step disability
analysis of 20 C.F.R. §§ 404.1520, 416.920. At steps one through four, the ALJ found
that (1) Owen was not engaged in substantial gainful activity, (2) his impairments
were severe, (3) his impairments did not meet or equal a listed impairment, and (4) he
lacked the RFC to perform his previous duties as a construction worker and foundry
worker. But at the final step of the disability analysis, the ALJ determined that Owen
was not disabled because he possessed the RFC to perform other jobs that exist in
significant numbers in the national economy, specifically parking lot attendant, rental
clerk, and cashier II.
The ALJ adopted Dr. Allen's assessment in determining Owen's RFC and
concluded that Owen's medical record did not reflect "much in the way of an objective
problem." Characterizing Dr. Allen as a "treating physician," the ALJ stated that her
findings were "consistent with the evidence in the record as a whole." The ALJ
concluded that Dr. Paulsrud's medical opinions expressed in his RFC assessment
forms were not entitled to controlling weight because they were inconsistent with
Owen's medical record, were based on Owen's allegations, and failed to account for
Owen's lack of compliance with treatment and medication instructions. Finally,
although the ALJ made a formal finding that Owen's allegations were supported by
the record and were credible, the ALJ explained in the body of his decision that
Owen's allegations were "less than fully credible."
-6-
The district court affirmed the ALJ's denial of Owen's applications for DIB and
SSI, concluding that substantial evidence on the record as a whole supported the ALJ's
determination that Owen was not disabled. The court acknowledged that a treating
physician's opinion is generally entitled to more weight than is the opinion of a
consultative physician. But the court stated that it was unnecessary to address whether
Dr. Allen qualified as a treating physician because the ALJ articulated legitimate
reasons for discounting Dr. Paulsrud's medical opinions.
II. Discussion
We review de novo the district court's decision to uphold the ALJ's denial of
Social Security benefits. Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir. 2007). We
will affirm the ALJ's decision "[i]f the ALJ's findings are supported by substantial
evidence on the record as a whole," an inquiry that requires us to consider evidence
in the record that detracts from the ALJ's decision. Wagner v. Astrue, 499 F.3d 842,
848 (8th Cir. 2007). "Substantial evidence is less than a preponderance but is enough
that a reasonable mind would find it adequate to support the decision." Reutter ex rel.
Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2004).
We will not reverse the ALJ's "denial of benefits so long as the ALJ's decision
falls within the 'available zone of choice.'" Bradley v. Astrue, 528 F.3d 1113, 1115
(8th Cir. 2008) (quoting Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007)). The
decision of the ALJ "is not outside the 'zone of choice' simply because we might have
reached a different conclusion had we been the initial finder of fact." Id. (quoting
Nicola, 480 F.3d at 886). Rather, "[i]f, after reviewing the record, the court finds it is
possible to draw two inconsistent positions from the evidence and one of those
positions represents the ALJ's findings, the court must affirm the ALJ's decision." Goff
v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005).
-7-
A. Medical Opinions of Dr. Allen and Dr. Paulsrud
Owen first argues that the ALJ erred in giving more weight to the medical
opinions of Dr. Allen than to the medical opinions of Dr. Paulsrud. Specifically, Owen
contends that the ALJ erred in declining to give Dr. Paulsrud's medical opinions
controlling weight and in deeming Dr. Allen a treating physician.
"In deciding whether a claimant is disabled, the ALJ considers medical opinions
along with 'the rest of the relevant evidence' in the record." Wagner, 499 F.3d at 848(quoting 20 C.F.R. § 404.1527(b)); see also 20 C.F.R. § 416.927(b). The Social
Security regulations provide that a treating source's opinion regarding "the nature and
severity" of a claimant's condition is entitled to "controlling weight" if the opinion "is
well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in [the] case record." 20
C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see also Prosch v. Apfel, 201 F.3d 1010,
1013 (8th Cir. 2000) (stating that "we have upheld an ALJ's decision to 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" (internal citation and quotation marks omitted)).
Typically, medical opinions from treating sources are entitled to greater weight
than are medical opinions from consultative sources:
Generally, we give more weight to opinions from your treating sources,
since these sources are likely to be the medical professionals most able
to provide a detailed, longitudinal picture of your medical impairment(s)
and may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief
hospitalizations.
-8-
20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). "Treating source" is defined as "your
own physician, psychologist, or other acceptable medical source who provides you,
or has provided you, with medical treatment or evaluation and who has, or has had,
an ongoing treatment relationship with you." Id. §§ 404.1502, 416.902.
The parties agree that Dr. Paulsrud qualifies as a treating physician under the
Social Security regulations. But substantial evidence on the record as a whole supports
the ALJ's conclusion that Dr. Paulsrud's medical opinions expressed in his RFC
assessment forms were not entitled to controlling weight. First, those opinions are
inconsistent with Owen's medical record. See id. §§ 404.1527(d)(2), 416.927(d)(2)
(stating that a treating source's medical opinion is entitled to "controlling weight" if
the opinion "is not inconsistent with the other substantial evidence in [the] case
record"). The October 2001 MRI, for example, revealed only "mild" degenerative disk
disease and "minimal" disk protrusion. Additionally, Dr. Paulsrud's opinions were
contradicted by the opinions of Dr. Allen, Dr. Wilson, and Dr. Knox; in fact, Dr.
Wilson specifically criticized the "liberal recommendations" contained in Dr.
Paulsrud's March 13, 2002, letter as being inconsistent with Owen's medical record.
Finally, Owen's activities of daily living do not reflect the physical limitations found
by Dr. Paulsrud.2
Second, the ALJ was also permitted to discount Dr. Paulsrud's medical opinions
expressed in his RFC assessment forms due to their inconsistencies. See Prosch, 201
F.3d at 1013 (stating that "we have upheld an ALJ's decision to discount or even
disregard the opinion of a treating physician . . . where a treating physician renders
inconsistent opinions that undermine the credibility of such opinions"). Dr. Paulsrud's
RFC assessment forms contain the following inconsistencies: (1) that Owen could
stand and walk for about four hours each workday and that he could do so for less
2
Owen claims that a cervical spine x-ray performed on April 22, 1996, revealed
that he suffered from "extremely severe degenerative changes," but the medical record
on which he relies is for another patient.
-9-
than two hours each workday; (2) that Owen could sit for about four hours each
workday and that he could do so for less than two hours each workday; (3) that Owen
could sit for two hours before needing to get up and that he could sit for only 30
minutes before needing to change position; (4) that Owen should avoid working with
machinery, at extreme temperatures, and at heights and that he had no such
restrictions; and (5) that Owen's ability to reach and handle was affected by his
impairment and that his ability to reach and handle was not affected by his
impairment. Furthermore, Dr. Paulsrud's conclusions in his RFC assessment forms
appear inconsistent with his characterization of Owen's back pain as "mild" and his
statement that Owen should "try to get back to work."
In Juszczyk v. Astrue, we held that substantial evidence supported the ALJ's
decision not to rely on a treating physician's assessment of the claimant's mental
limitations. 542 F.3d 626, 632–33 (8th Cir. 2008). The ALJ had rejected the treating
physician's assessment because it was inconsistent with the treating physician's own
treatment notes, objective testing, and other medical evidence in the record. Id. at 632.
Our review of the record confirmed the ALJ's conclusion. Id. Similarly, Dr. Paulsrud's
medical opinions expressed in his RFC assessment forms are inconsistent with one
another, his treatment notes, the MRIs, and the medical opinions of the other
physicians.
In his decision, the ALJ indicated that one of the reasons he did not give Dr.
Paulsrud's medical opinions controlling weight was that Dr. Paulsrud did not account
for Owen's noncompliance with treatment and medication instructions in assessing the
degree of Owen's impairment. Owen argues that noncompliance "is an illegal factor
to consider" because the Social Security regulations provide that a treating source's
medical opinion is entitled to controlling weight so long as it "is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record." See 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2). But a claimant's noncompliance can constitute
-10-
evidence that is inconsistent with a treating physician's medical opinion and, therefore,
can be considered in determining whether to give that opinion controlling weight. Cf.
Brown v. Barnhart, 390 F.3d 535, 540–41 (8th Cir. 2004) (holding that the ALJ was
free not to give controlling weight to a treating physician's opinion that the claimant
was disabled because substantial evidence indicated that the claimant was
noncompliant with her prescribed treatment without good reason and, therefore, was
not disabled). In light of Owen's failure to attend his physical therapy appointments,
stop smoking, and follow regular exercise and dietary plans, the ALJ did not err in
considering Dr. Paulsrud's failure to account for Owen's noncompliance.3
Having determined that the ALJ did not err in declining to give Dr. Paulsrud's
medical opinions controlling weight, we next consider whether the ALJ erred in
subordinating Dr. Paulsrud's medical opinions to the medical opinions of Dr. Allen.
Owen argues that the ALJ erred in deeming Dr. Allen a treating physician, but we
agree with the district court that it is unnecessary to address that issue. Even if Dr.
Allen is deemed to be a non-treating physician, the ALJ was entitled to give more
weight to her medical opinions than to the medical opinions of Dr. Paulsrud. See, e.g.,
Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008) (concluding that any error on
the part of the ALJ was harmless because there was "no indication that the ALJ would
have decided differently" in the absence of the error).
3
Owen also claims that the ALJ violated Social Security Ruling (SSR) 82-59,
1982 WL 31384, in considering Dr. Paulsrud's failure to account for Owen's
noncompliance. But SSR 82-59 "explains the circumstances in which the Secretary
may deny benefits to an otherwise disabled individual on the basis that the claimant
has failed to follow . . . prescribed treatment" and "only applies to claimants who
would otherwise be disabled within the meaning of the Act." Holley v. Massanari, 253
F.3d 1088, 1092 (8th Cir. 2001). SSR 82-59 does not apply to this case, in which the
ALJ considered Owen's noncompliance for purposes of determining the weight to give
Dr. Paulsrud's medical opinions.
-11-
Under the Social Security regulations, the amount of weight given to a non-
controlling medical opinion is determined by applying the following factors: (1)
whether the source has examined the claimant; (2) the length, nature, and extent of the
treatment relationship and the frequency of examination; (3) the extent to which the
relevant evidence, "particularly medical signs and laboratory findings," supports the
opinion; (4) the extent to which the opinion is consistent with the record as a whole;
(5) whether the opinion is related to the source's area of specialty; and (6) other factors
"which tend to support or contradict the opinion." 20 C.F.R. §§ 404.1527(d),
416.927(d); see also Wagner, 499 F.3d at 848.
Because Dr. Allen and Dr. Paulsrud both examined Owen, the first factor is
neutral. The second factor favors granting Dr. Paulsrud's medical opinions more
weight because he treated Owen for a longer period of time and more frequently than
did Dr. Allen. But because Owen's medical record and his activities of daily living
support Dr. Allen's opinions and undermine Dr. Paulsrud's opinions, the third and
fourth factors strongly favor granting Dr. Allen's opinions more weight. Finally,
because the record does not reflect whether Dr. Paulsrud or Dr. Allen are specialists
and because we are aware of no other factors that should be considered, the fifth and
sixth factors—like the first factor—are neutral. The application of the six-factor test
supports the ALJ's decision to give more weight to the medical opinions of Dr. Allen
than to the medical opinions of Dr. Paulsrud.
The ALJ's determination that the medical opinions of Dr. Allen were entitled
to more weight than were the medical opinions of Dr. Paulsrud is supported by our
decision in Travis v. Astrue, 477 F.3d 1037. The claimant in Travis argued that the
ALJ did not give the opinions of her treating physicians appropriate weight in
concluding that she was not disabled. Id. at 1040–41. In particular, the claimant
"argue[d] that a one-time medical evaluation does not provide substantial evidence for
the ALJ's decision." Id. at 1042. We held that substantial evidence supported the ALJ's
decision, emphasizing that "the ALJ's determination to grant [the claimant's] treating
-12-
physicians' opinions less weight is supported by more than a one-time medical
evaluation and is supported by medical evidence." Id. We stated that we would "not
reverse merely because evidence also points to an alternate outcome." Id. Similarly,
the ALJ's decision in this case is supported by Dr. Allen's opinion, the opinions of
other physicians, and the medical evidence in the record.
B. Absence of Drowsiness in the ALJ's RFC Finding
Owen next argues that the ALJ erred in omitting drowsiness from the ALJ's
RFC finding, emphasizing that the vocational expert testified that Owen would be
unable to perform any job if he were unable to stay awake. Owen contends that the
inconsistency between the ALJ's formal finding that Owen was credible and the ALJ's
explanation in the body of his decision that Owen was not credible is relevant to our
review of the ALJ's decision not to include drowsiness in his RFC finding.
"We have held that an arguable deficiency in opinion-writing technique does
not require us to set aside an administrative finding when that deficiency had no
bearing on the outcome." Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008) (internal
quotation marks omitted). The ALJ did not omit drowsiness from his RFC finding
based on Owen's credibility; rather, the ALJ reasoned as follows:
[Owen] thought the medication Hydrocodone had caused sleepiness and
fatigue. However, the medical records do not establish the existence of
any side effect from any medication which had lasted for a 12 month
continuous period, given attempts at adjustment or substitution and
which would further credibly reduce Mr. Owen's work capacity beyond
that outlined in the residual functional capacity found for him . . . .
Additionally, the ALJ stated that "[t]hough the claimant has reported some side
effects, adjustment or substitution of medication [has] permitted the claimant to
tolerate such effects, given the balance between the limited severity of side effects
versus the significant benefits provided by the medication." The inconsistency in the
-13-
ALJ's decision regarding Owen's credibility had no effect on the ALJ's decision not
to include drowsiness in his RFC finding.
Furthermore, we have held that an ALJ may omit alleged impairments from a
hypothetical question posed to a vocational expert when "[t]here is no medical
evidence that these conditions impose any restrictions on [the claimant's] functional
capabilities." Haynes v. Shalala, 26 F.3d 812, 815 (8th Cir. 1994). Likewise, we have
held that an ALJ may omit alleged impairments from a hypothetical question when the
record does not support the claimant's contention that his impairments "significantly
restricted his ability to perform gainful employment." Eurom v. Chater, 56 F.3d 68(8th Cir. 1995) (per curiam) (unpublished table decision). There is no evidence in the
record that the drowsiness experienced by Owen as a result of his medication was
uncontrollable or restricted his ability to work. Accordingly, the ALJ did not err in
omitting drowsiness from his RFC finding.
III. Conclusion
Because substantial evidence on the record as a whole supports the ALJ's
determination that Owen was not disabled from July 25, 1999, to February 14, 2002,
we affirm the judgment of the district court.
______________________________
-14-