Charles Bryant v. Nancy A. Berryhill

United States Court of Appeals
For the Eighth Circuit
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No. 16-4103
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Charles Bryant
Plaintiff - Appellant
v.
Carolyn W. Colvin, Acting Commissioner,
Social Security Administration
Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Jonesboro
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Submitted: April 6, 2017
Filed: June 29, 2017
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Before SMITH, Chief Judge, SHEPHERD, Circuit Judge, and FENNER,1 District
Judge.
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SHEPHERD, Circuit Judge.
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri, sitting by designation.
Charles Bryant appeals the decision of the district court2 affirming the decision
of the Commissioner to uphold the Administrative Law Judge’s (ALJ) denial of his
application for disability insurance benefits (DIB) and Supplemental Security Income
(SSI) under the Social Security Act. Having jurisdiction under 28 U.S.C. § 1291, we
affirm.
I. Background
Bryant applied for DIB and SSI benefits alleging a disability onset of May 25,
2012, due to a left leg injury, rheumatoid arthritis, and gout. The ALJ denied his
application.
Chronologically, Bryant’s left leg history is as follows. On May 25, 2012,
Bryant, at 61 years of age, was involved in a motorcycle accident resulting in a
severely comminuted, closed, left tibia/fibula fracture for which he underwent
immediate intramedullary nailing without complications. Bryant was released by his
orthopaedic surgeon, Dr. Roy E. Cooper, to “resume full work activities” on February
12, 2013—almost nine months after the left leg surgery. At that time, Bryant reported
that he was getting better, but complained that he still had some swelling in the leg.
Bryant went back to work for one and one-half months, but according to Bryant, he
“had to retire because [his] leg was swelling up too much and [he] could hardly
walk.” He did not seek medical attention to address these complaints or try to find
another job. So, in May 2013, Bryant retired at the age of 62.
After retirement, Bryant lost his health insurance and waited several months
for Medicare to start before seeking further treatment of his left leg. In January 2014,
Dr. Cooper said that the x-rays of his tibia/fibula fracture showed “complete fracture
2
The Honorable J. Thomas Ray, United States Magistrate Judge for the Eastern
District of Arkansas.
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union with excellent appearance of the hardware.” The cross-locking screws were
removed from his tibial nail in May 2014 because they were causing him some
discomfort in the area of the screw heads. The following month, Bryant’s primary
doctor, Dr. Michael Tedder, described his gait and range of motion as within normal
limits while also noting “normal flexibility” and a “normal straight leg raise.” On
July 28, 2014, Bryant reported that he was “very happy and . . . is walking better and
doing better.” Dr. Cooper again released him to “normal activities” at that time.
For twenty years, Bryant had a history of gout attacks which were treated
intermittently with allopurinol and decadron. His good work history indicates that
these gout attacks did not cause him to miss work generally. Some of these attacks
occurred while he was recovering from the motorcycle accident. One such attack
involved his left ankle and was treated by Dr. Tedder by restarting the allopurinol and
decadron on October 19, 2012; no work restrictions were placed on him by Dr.
Tedder. Another gout attack affecting his ankles and left great toe was treated by Dr.
Tedder in January 2013 with the same medications and without any work restrictions
mentioned.
Bryant has a maternal history of rheumatoid arthritis, but evidence is lacking
that he has the disorder. His rheumatoid factor was negative on October 19, 2012,
and the doctor did not include rheumatoid arthritis as a diagnosis in the subsequent
visits. Bryant later claimed the classification as “rheumatoid” was a “layman’s
misunderstanding,” and pointed to x-rays in December 2011 showing some
degenerative changes in his right knee and a CT scan in May 2012 showing some
degenerative changes in his neck. However, the record does not indicate that the
doctors considered these issues disabling, or that they were even actively being
treated at all.
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Bryant had other complaints which were considered, along with the ones listed
on his application. For example, he was treated for cataracts and diabetes mellitus
type II.
After reviewing the record and after conducting a hearing (on February 19,
2014) including testimony by Bryant and a vocational expert cross-examined by
Bryant’s counsel, the ALJ determined that Bryant “is not disabled under . . . the
Social Security Act,” and therefore, DIB and SSI benefits were denied.
The parties consented in writing to the jurisdiction of a United States
Magistrate Judge. The Magistrate Judge affirmed the ALJ’s decision, finding
“substantial evidence” to support the conclusion that Bryant was not disabled within
the meaning of the Social Security Act.
II. Analysis
Bryant challenges whether there is substantial evidence in the record as a whole
to support the ALJ’s determination that his residual functional capacity (RFC) is
“medium work.” We review de novo the district court’s decision to affirm the ALJ’s
denial of social security DIB and SSI. Lawson v. Colvin, 807 F.3d 962, 964 (8th Cir.
2015). “If substantial evidence in the record as a whole supports the ALJ’s decision,
then this Court will affirm the denial of benefits.” Id. (emphasis added). “Substantial
evidence is less than a preponderance but . . . enough that a reasonable mind would
find it adequate to support the conclusion.” Id. (internal quotation marks omitted).
Here, the ALJ properly analyzed Bryant’s disability claims under the five-step
evaluation process outlined in the regulations. 20 C.F.R. §§ 404.1520(a)(4),
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416.920(a)(4).3 During the analysis, the ALJ found that Bryant had not performed
any substantial gainful activity (SGA) since the motorcycle accident on May 25,
2012, and that Bryant had severe impairments related to his fractured leg, gout, and
diabetes—but none that equaled an impairment listed in Appendix I. 20 C.F.R. § Pt.
404, Subpt. P, App. 1. To address the remaining steps regarding Bryant’s ability to
perform past relevant or other work, the ALJ assessed Bryant’s RFC and determined
that he could perform the full range of “medium work.” 20 C.F.R. §§ 404.1567(c),
416.967(c).
Credibility Assessment
Part of the RFC determination includes an assessment of the claimant’s
credibility regarding subjective complaints. Using the Polaski factors, “[s]ubjective
complaints may be discounted if there are inconsistencies in the evidence as a whole.”
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984); see also Lowe v. Apfel, 226
F.3d 969, 972 (8th Cir. 2000) (noting Polaski factors must be considered before
discounting subjective complaints). In addition to the claimant’s prior work record,
the Polaski factors include (1) the claimant’s daily activities; (2) the duration,
frequency and intensity of the pain; (3) precipitating and aggravating factors; (4)
dosage, effectiveness, and side effects of medication; and (5) functional restrictions.
Polaski, 739 F.2d at 1322; see also 20 C.F.R. § 404.1529.
In assessing Bryant’s subjective complaints, the ALJ clearly considered the
Polaski factors and substantial evidence supports her determination that “[Bryant’s]
statements concerning the intensity, persistence and limiting effects of [his]
3
The steps are: (1) Is the claimant currently performing substantial gainful
activity (SGA)? (2) Does the claimant have a severe impairment? (3) Does the
impairment meet or equal an impairment listed in Appendix I? (4) Does the
impairment prevent the claimant from performing past relevant work? (5) Does the
impairment prevent the claimant from doing any other work?
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symptoms are not entirely credible.” The adjudicator is “not required to discuss each
Polaski factor as long as ‘[she] acknowledges and considers the factors before
discounting a claimant’s subjective complaints.’” Halverson v. Astrue, 600 F.3d 922,
932 (8th Cir. 2010) (quoting Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009)).
Here, the ALJ used numerous facts to assess Bryant’s credibility. First, the
ALJ considered Bryant’s work history, noting that “[Bryant] has a very good work
history” supporting his credibility, but also observing that Bryant’s “gout flares did
not prevent him from working over the years, as evidenced by his good work history.”
Naber v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994) (noting “that [a] condition that was
not disabling during working years and has not worsened cannot be used to prove
present disability” (citing Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990))).
Second, the ALJ considered inconsistencies between Bryant’s complaints,
personal history, and the medical record. For example, the ALJ considered his daily
activities including the facts that he lives alone, independently takes care of his
personal needs, drives automobiles, shops, prepares meals, does his laundry, and
occasionally attends church, among other activities. See, e.g., Casey v. Astrue, 503
F.3d 687, 696 (8th Cir. 2007) (noting that “playing cards, watching television,
shopping, performing occasional housework, and driving children and wife [had
been] held inconsistent with disabling pain” (citing Riggins v. Apfel, 177 F.3d 689,
693 (8th Cir. 1999))).
Another inconsistency considered by the ALJ concerned the circumstances
surrounding Bryant’s retirement. Bryant was released by Cooper to “resume full
work activities” in February 2013, but he “retired” after only one and one-half months
claiming “my leg was swelling up too much and I could hardly walk”; yet, there is no
evidence that he complained to Dr. Cooper or Dr. Tedder during this one and one-half
month period before unilaterally deciding to retire. Further, in spite of the release to
full work, the ALJ found “no evidence that [Bryant] attempted to find other work.”
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Nor does the record reveal a single doctor’s visit to re-assess his work status.
Whitman v. Colvin, 762 F.3d 701, 706 (8th Cir. 2014) (finding that the ALJ “properly
considered [claimant’s] relative lack of medical care, including his failure to seek care
from ‘charity’ providers, as relevant, considering [claimant’s] allegations of
‘unbearable . . . pain”); see also Ellis v. Barnhart, 384 F. Supp. 2d 1195, 1203 (N.D.
Ill. 2005) (noting “[a]n ALJ can consider evidence of non-compliance with medical
advice when assessing credibility”).
A final example of inconsistencies involves Bryant’s alleged rheumatoid
arthritis. Bryant claims that he is disabled due to rheumatoid arthritis, or
alternatively, due to osteoarthritis, but the record does not support a disability from
either. The medical record reveals that Bryant only has a maternal history of
rheumatoid arthritis, but no personal history. He points to some findings of
osteoarthritis on x-rays and on a CT scan in radiology reports although none of the
treating doctors appear to express any concern to the conditions in assessing Bryant
or his work status. Lewis v. Barnhart, 353 F.3d 642, 647 (8th Cir. 2003) (supporting
the ALJ’s discounting of subjective pain complaints as not credible when the record
as a whole, including medical record, did not support the complaints); Vester v.
Barnhart, 416 F.3d 886, 889 (8th Cir. 2005) (stating “we defer to the ALJ’s
determinations regarding the credibility of witnesses so long as such determinations
are supported by good reasons and substantial evidence”).
RFC Assessment
Considering all of Bryant’s symptoms, and the extent these symptoms were
consistent with objective medical evidence, the ALJ found that “[Bryant] has the
residual functional capacity to perform the full range of medium work as defined in
20 C.F.R. 404.1567(c) and 416.967(c).”
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Substantial evidence supports the ALJ’s RFC determination that Bryant is able
to perform medium work. First, the ALJ fully considered Bryant’s present condition
acknowledging that Bryant is a “63-year old individual with the equivalent of a high
school education . . . [and] past relevant work as a general laborer/warehouse worker”
and considered “all symptoms and the extent to which these symptoms can reasonably
be accepted as consistent with the objective medical evidence.”
Second, the ALJ confirmed that Bryant had a “severe” injury, but that the
injury appears to have completely healed as evidenced by a full work release from Dr.
Cooper and by Dr. Cooper’s x-ray findings of “complete fracture union with excellent
appearance of the hardware” in January 2014 (prior to the February 2014 hearing).
Third, the ALJ rightfully noted the lack of any medical provider making
allowances for any disability in Bryant’s care. For example, the ALJ states, “[t]here
is no evidence of any health care provider restricting [Bryant] from all work activity.”
The ALJ also reported that “[n]one of the claimant’s treating physicians . . . offered
an opinion that [Bryant] is disabled or made any . . . recommendation that the
claimant is unable to work at an SGA level.” In fact, Dr. Tedder described Bryant as
having a gait and range of motion “within normal limits” with “normal flexibility”
and described him as “very happy.” Further, Bryant had a long history of working
with gout, and Dr. Tedder never placed any work restrictions upon Bryant during his
gout attacks. Brown v. Chater, 87 F.3d 963, 965 (8th Cir. 1996) (noting that a “lack
of significant medical restrictions [is] inconsistent with . . . complaints of disabling
pain” (citing Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993))).
Fourth, the ALJ noted that if Bryant maintained proper medical treatment, there
was no evidence that his medical issues (including his left leg, cataracts, gout,
arthritis, and diabetes) could not be controlled adequately to allow him to resume
medium work. Instead, Bryant retired in May 2013 without seeking medical
assistance or advice, and there is no evidence that he sought other work thereafter.
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Barnes v. Soc. Sec. Admin., 171 F.3d 1181, 1183 (8th Cir. 1999) (per curiam)
(concluding that substantial evidence supported the ALJ’s decision where there was
“no medical evidence indicating that the [chronic condition] ha[d] deteriorated since
. . . when he was able to work . . . using [accommodations]”).
Finally, the ALJ’s finding that Bryant can resume his job is supported by the
vocational expert’s testimony. At the February 2014 hearing, the vocational expert
testified that a hypothetical person over 60 years old with a GED who can perform
medium work can perform Bryant’s past work as an unskilled warehouse worker with
a medium exertional level. Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011)
(holding that a vocational expert’s answer to a hypothetical question that includes the
claimant’s limitations determined by the ALJ “constitute[s] substantial evidence
supporting the Commissioner’s denial of benefits” (quoting Lacroix v. Barnhart, 465
F.3d 881, 889 (8th Cir. 2006))).
III. Conclusion
The RFC and credibility determinations of the ALJ are well supported by
substantial evidence including Bryant’s medical records, his statements at the hearing,
the findings of the vocational expert, and the record as a whole. The ALJ examined
the record as a whole and properly considered the doctors’ findings that the left leg
fracture was completely healed, the doctors’ lack of restrictions placed on the
claimant upon return to work, the claimant’s ability to live independently and perform
activities of daily living, the claimant’s decision to retire without further medical
advice, the claimant’s limitations or lack thereof, and many other factors in reaching
this determination. The ALJ’s decision is supported by substantial evidence.
Affirmed.
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