Marlise Grebenick v. Shirley S. Chater , 121 F.3d 1193 ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 96-3032
_____________
Marlise Grebenick, *
*
Plaintiff - Appellant, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Shirley S. Chater, *
Commissioner of Social *
Security Administration, *
*
Defendant - Appellee. *
_____________
Submitted: March 13, 1997
Filed: August 6, 1997
_____________
Before McMILLIAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges.
_____________
HANSEN, Circuit Judge.
Marlise Grebenick appeals from a judgment of the district court1 affirming a
denial of disability insurance benefits under Title II of the Social Security Act. The
district court concluded that Mrs. Grebenick was not "disabled" at the time her
insured status ended on September 30, 1982. We affirm.
I.
A. Factual Background
Marlise Grebenick was born in September 1943. She was a high school
graduate, was trained as a Licensed Practical Nurse, and worked as a secretary.
She married Albert Grebenick in 1976. When she had her first child in 1977, she
quit her secretarial work to stay home and work as a housewife and mother. The
Grebenicks had their second child in April of 1981. Within a few months, Mrs.
Grebenick began experiencing the first signs of what was later diagnosed as multiple
sclerosis.
The early period of Mrs Grebenick's illness is not well documented.
Although the record indicates that she encountered her first noticeable symptoms
shortly after giving birth to her second child in April 1981, she did not see a doctor
about them until August 1983. There are few medical records concerning Mrs.
Grebenick prior to that date. After delivering her second child in 1981, she saw her
doctor twice concerning birth control matters. In April 1982, she had her yearly
gynecological exam, during which she complained of being tired. Finally, she was
seen in an emergency room on May 31, 1982, because she had sustained a
laceration to her eyebrow as a result of tripping while carrying a folding chair. In
1
The Honorable William G. Cambridge, Chief Judge, United States District
Court for the District of Nebraska.
2
the miscellaneous portion of the ER form, the doctor noted, "moves all extremities
well; minor abrasion to left knee." (Admin. Agency R. at 117.)
On August 9, 1983, Mrs. Grebenick was admitted to the hospital for
"evaluation and treatment of symptoms present for two years." (Id. at 118.) The
history section of the medical records states that Mrs. Grebenick first developed
"numbness and tingling in her feet" about three months after the birth of her
youngest child, about two years prior to her hospitalization. (Id. at 119.) "She then
noted it was difficult and uncomfortable to walk. These symptoms persisted, and
actually for a year, she noted no change and did relatively well." (Id.) The
symptoms varied from day to day, but by the time she was hospitalized, she had had
trouble walking for about a year. Approximately a month before her hospitalization
in August 1983, the numbness and tingling had crept up to her waist bilaterally.
The medical records from the 1983 evaluation describe her as a pleasant,
tense, 39-year-old woman who walked with a mildly unsteady gait. She had a
decreased ability to perform rapid alternating movements with her feet and definite
ataxia2 on tandem walking. She had a clearly positive Romberg sign,3 hyperactive
reflexes in the lower extremities, markedly reduced position sense in the right lower
extremity, and mildly reduced position sense in the left lower extremity. She also
had no vibratory sensation at the ankles, knees, and hip. She had mild paraparesis
(partial paralysis) distally in both lower extremities bilaterally. She was dismissed
2
"Ataxia" is an inability to coordinate muscle activity during a voluntary
movement, so that smooth movements cannot occur. A person with ataxia problems
walks with her feet wide apart, slapping them clumsily to the floor with each step. The
person also depends on visual cues to maintain balance, and may generally have
balance problems.
3
The "Romberg sign" is the inability to stand (feet together or slightly less than
shoulder width apart) without becoming unsteady, swaying, or falling over.
3
from the hospital on August 12, 1983, and diagnosed with asymmetric posterolateral
sclerosis.
The neurologist who conducted the hospital evaluation was Dr. John C.
Goldner, whom Mrs. Grebenick continued to see until August of 1992. The doctor's
progress notes reveal that Mrs. Grebenick's condition progressively declined over
the years, although her health and her ability to control her symptoms "fluctuate[d]
from time to time." (Id.) For example, Dr. Goldner's notes from an office visit on
September 14, 1983, (a month after her hospital evaluation and a year after the
expiration of her insured status) indicate that her paresthesia had disappeared but
that she was still having some trouble walking. He told her then that the probable
diagnosis was multiple sclerosis and recommended increased amounts of rest. Mrs.
Grebenick's symptoms improved somewhat by her October 1983 appointment, and
the progress notes from her December 1983 appointment indicate that rest helped
her significantly and she had "definitely improved" from her earlier appointments.
(Id.) Over the long term, however, her condition declined. In October of 1985, she
experienced an exacerbation of her symptoms, increasing her fatigue and her
difficulty in walking. By February of 1988, Mrs. Grebenick was walking with a
cane.
In February 1992, Mrs. Grebenick was seen by another doctor and completed
a Patient Case History for that doctor. When asked how long she had had her
condition, she answered that she had been diagnosed in 1983. When asked how
long it had been since she had really felt good, she answered, "5 years ago." (Id. at
124.)
In November 1992, Mrs Grebenick entered a nursing home. At that time, her
disease had progressed to the point where she was totally unable to take care of her
4
physical needs. Mrs. Grebenick died in November 1996, after this appeal was filed
but before we heard oral arguments in the case.4
B. Procedural History
Mrs. Grebenick applied for disability insurance benefits on December 3,
1992, alleging that she had been unable to work since May 15, 1982. For Mrs.
Grebenick to receive benefits, she needed to show that her disability began on or
before the expiration of her insured status on September 30, 1982. The case
proceeded to a hearing before an ALJ. Mrs. Grebenick was not at the hearing
herself, but her husband testified on her behalf.
Mr. Grebenick testified that, in 1981, Mrs. Grebenick needed to take two- to
three-hour naps because of fatigue. He said she encountered severe vision
difficulties, so that she was unable to read more than a couple of paragraphs at a
time. He claimed she had to hold on to the wall in order to walk and was using a
cane in early 1982. Mr. Grebenick also testified she had difficulty eating because of
numbness in her hands. He stated that prior to September 30, 1982, she was unable
to bend over without falling. He said her activities consisted basically of resting and
occasionally washing a few dishes. Mr. Grebenick cited the incident leading to the
emergency room visit as an example of Mrs. Grebenick's symptoms, explaining that
she fell while attempting to carry a folding chair.
Mrs. Grebenick submitted a letter dated July 26, 1994, from Dr. Goldner,
outlining her medical history. In the letter, Dr. Goldner stated that he began seeing
4
Although we were informed at oral argument that Mrs. Grebenick was
deceased, we review the case in the context as it appeared before the ALJ.
Consequently, we find it easier to refer to the late Mrs. Grebenick in the present tense,
rather than the past tense.
5
her in 1983 for symptoms that had begun two years earlier in 1981. The doctor
concluded "she was disabled from working prior to August 1982 because of the
multiple sclerosis." (Id. at 135.)
Finally, Mrs. Grebenick also submitted the affidavits of two persons who
were her neighbors during the time between the summer of 1981 when the
symptoms began to appear and September of 1982, when Mrs. Grebenick's insured
status expired. Both neighbors claimed that Mrs. Grebenick had tingling and
numbness in her hands and feet, excessive fatigue, and difficulty walking, so that
she frequently stumbled and used a wall, chair or handrail for support.
The ALJ applied the five-step evaluation set forth in 20 C.F.R. § 404.1520 to
determine whether Mrs. Grebenick was disabled on or before September 30, 1982.
First, he found that she had not performed substantial and gainful work activity since
the date she alleged she had become disabled. Second, he found that she had
suffered from a medically determinable impairment (symptoms of multiple sclerosis)
prior to September 30, 1982, and the impairment limited her ability to perform basic
work-related functions.
At the third step of the analysis, however, the ALJ found that her impairment
did not amount to a disability due to multiple sclerosis, as listed in the Social
Security Administration Regulations, because her symptoms were not severe enough
before September 30, 1982. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 11.09 (1996).
The ALJ noted that he discounted Dr. Goldner's conclusion in 1994 that she was
disabled from working prior to August 1982, because the doctor's retrospective
conclusion was inconsistent with his contemporaneous progress notes. Applying the
standard in Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir. 1984), the ALJ
found Mr. Grebenick's testimony on behalf of his wife lacking in credibility because
in many aspects, it too was inconsistent with the medical progress notes. For the
same reason, the ALJ rejected the affidavits of the two neighbors who corroborated
6
Mr. Grebenick's testimony regarding Mrs. Grebenick's condition before September
30, 1982. Thus, the ALJ relied heavily on the contemporaneous medical records (or
lack thereof) and the subsequent records of Mrs. Grebenick's treatment beginning in
August of 1993. Based on this evidence, the ALJ concluded that Mrs. Grebenick
had failed to prove she was disabled for Social Security purposes on or before
September 30, 1982.
The ALJ nonetheless gave Mrs. Grebenick "every benefit of the doubt with
regard to any conflicts or contradictions contained in the clinical and laboratory
findings of record." (Admin. Agency R. at 23.) Upon review of the medical records,
the ALJ concluded for purposes of the fourth step of the analysis that Mrs.
Grebenick was "incapable of performing occupations requiring lifting in excess of 10
pounds, prolonged standing, [or] excessive walking and/or climbing." (Id.) Even
with these limitations, however, the ALJ found that Mrs. Grebenick had been able to
perform her past relevant work as a secretary through September 30, 1982.
Without needing to, the ALJ proceeded to the fifth step of the analysis. He
found that as of September 30, 1982, Mrs. Grebenick was able to perform
"sedentary" jobs, of which there were plenty in the national market. The ALJ
concluded that Mrs. Grebenick was not entitled to disability benefits.
Mrs. Grebenick appealed the ALJ's decision on numerous grounds. The
Appeals Council denied her request for review, and thus the ALJ's decision stands as
the Commissioner's final decision. Mrs. Grebenick sought review in federal district
court, and the Commissioner's decision was affirmed. Mrs. Grebenick now appeals
to this court.
7
II.
Mrs. Grebenick submits a number of challenges to the ALJ's decision. "Our
task on review is to determine whether the denial of benefits is supported by
substantial evidence in the record as a whole." Gaddis v. Chater, 76 F.3d 893, 895
(8th Cir. 1996); see also 42 U.S.C. §§ 405(g), 1383(c)(3) (1994). "To do so, we
must evaluate the evidence in the record [that] supports the ALJ's decision as well as
that which detracts from it." Gaddis, 76 F.3d at 895. "We may not reverse merely
because substantial evidence would have supported an opposite decision." Id.
(internal quotations omitted).
The overarching issue in this case is the question of whether Mrs. Grebenick
actually was disabled as defined for Social Security purposes by her multiple
sclerosis before her insured status expired. The five-step sequential evaluation
process set forth at 20 C.F.R. §§ 404.1520 and 416.920 guides our inquiry:
"First the [Commissioner] determines whether the claimant is presently
engaged in a `substantial gainful activity.' Second the [Commissioner]
analyzes whether the claimant has a severe impairment -- one that
significantly limits the claimant's physical or mental ability to perform
basic work activities. Third, the [Commissioner] determines whether
the claimant has an impairment that meets or equals an impairment
listed in the regulations; if so, the [Commissioner] finds that the
claimant is disabled without considering the claimant's age, education
and work experience. Fourth, the [Commissioner] considers the
claimant's residual functional capacity and the physical and mental
demands of the claimant's past work to determine whether the claimant
can still perform the work. If the claimant has the residual capacity to
perform that work, the [Commissioner] finds that the claimant is not
disabled. Finally, if the [Commissioner] determined that the claimant
cannot perform the past work, the [Commissioner] determines whether
any substantial gainful activity exists in the national economy which the
claimant can perform."
8
Ingram v. Chater, 107 F.3d 598, 601 (8th Cir. 1997) (quoting Smith v. Shalala, 987
F.2d 1371, 1374 (8th Cir. 1993)).
The parties agree that Mrs. Grebenick met the first two steps of the five-step
analysis; she was not working, and she established that she suffered some symptoms
of multiple sclerosis prior to the expiration of her insured status. We turn then to the
third inquiry -- whether substantial evidence supports the ALJ's finding that Mrs.
Grebenick's impairment as of September 30, 1982, did not rise to the severity of the
listing criteria.
Multiple sclerosis is listed as a disability under the Act. To meet the standard
of the multiple sclerosis listing as it applies to persons with disorganization of motor
function, 20 C.F.R. pt. 404, subpt. P, app. 1, § 11.09A,5 a claimant must suffer from
"[s]ignificant and persistent disorganization of motor function in two extremities,
resulting in sustained disturbance of gross and dexterous movements, or gait and
station." Id. § 11.04B.
Initially, Mrs. Grebenick argues that the ALJ failed to make a determination
on whether her condition prior to September 30, 1982, met the listing criteria for
multiple sclerosis. This argument has no basis in the facts, because the ALJ
specifically found that "her impairment, on/or before September 30, 1982, did not
reveal the same or equivalent attendant medical findings as are recited in Appendix I
to Subpart P of the Social Security Administration's Regulation's No. 4, but did
impose limitations upon her ability to perform basic work-related functions."
(Admin. Agency R. at 24.)
5
The regulations recognize three forms of multiple sclerosis: disorganization of
motor function, visual or mental impairment, and significant fatigue demonstrated on
physical examination. Id. § 11.09A-C.
9
Alternatively, Mrs. Grebenick argues that the ALJ erred in reaching his
conclusion, because the evidence overwhelmingly indicates she had met the multiple
sclerosis listing requirements prior to September 30, 1982. Mrs. Grebenick
submitted four types of evidence supporting her claim that she was disabled before
the expiration of her insured status on September 30, 1982: (1) the limited medical
evidence prior to her hospitalization in August of 1983; (2) the medical evidence
documenting her condition from 1983 through her death, including the hospital
records and Dr. Goldner's contemporaneous progress notes; (3) Dr. Goldner's July
1994 letter relating her history with multiple sclerosis and concluding that she was
disabled before September 30, 1982; and (4) the subjective lay evidence, including
the testimony of her husband and her neighbors. Because of the paucity of medical
evidence documenting her condition before her insured status expired, Mrs.
Grebenick relied primarily on the latter three types of evidence to establish her
disability.
In a case involving a degenerative disease such as multiple sclerosis, where a
claimant does not have contemporaneous objective medical evidence of the onset of
the disease, the ALJ must consider all of the evidence on the record as a whole,
including the lay evidence and the retrospective conclusions and diagnosis of her
doctor. Basinger v. Heckler, 725 F.2d 1166, 1169 (8th Cir. 1984). We look first at
the retrospective conclusions set forth by Dr. Goldner.
"If the [treating doctor's retrospective] diagnosis is based upon a medically
accepted clinical diagnostic technique, then it must be considered in light of the
entire record to determine whether it establishes the existence of a physical
impairment prior to the expiration of the claimant's insured status." Id. at 1169
(internal quotations omitted). "A treating physician's opinion is generally entitled to
substantial weight; however, such an opinion is not conclusive in determining
disability status, and the opinion must be supported by medically acceptable clinical
or diagnostic data." Davis v. Shalala, 31 F.3d 753, 756 (8th Cir. 1994).
10
Based upon his progress notes dating as far back as 1983, Dr. Goldner
concluded in his July 1994 letter that Mrs. Grebenick suffered from multiple
sclerosis prior to September 30, 1982. After outlining her medical history through
1992, he stated, "Clearly Mrs. Grebenick is unable to work at any job in the
competitive market for at least a twelve month period and will never be able to do
so. In my opinion, she was disabled from working prior to August 1982 because of
the multiple sclerosis." (Admin. Agency R. at 135.) The ALJ rejected this
conclusion, finding that the documentary evidence did not support a conclusion that
Mrs. Grebenick was disabled at that time.
Upon careful review of the medical records, we find substantial support for
the ALJ's determination that the clinical and diagnostic data is inconsistent with Dr.
Goldberg's conclusion that Mrs. Grebenick was disabled for Social Security
purposes before her insured status expired. The contemporaneous medical records
show that she had balance problems in 1983, but she had experienced only numbness
and tingling in her feet during the first year of her symptoms. The hospital record of
August 1983 indicates only that she walked "with a mildly unsteady gait." (Admin.
Agency R. at 118.) A month later, in September 1983, her paresthesia had
disappeared. In October 1983, she stated that her legs hurt when she "was up too
long" but that her balance was better. (Id. at 126.) We conclude that the symptoms
documented in 1983 were not "significant" and "persistent," resulting in a sustained
disturbance to Mrs. Grebenick's "gross motor and dexterous movements or gait and
station." 20 C.F.R. § 11.04B. Because multiple sclerosis is a progressive disease,
Mrs. Grebenick's symptoms prior to September 30, 1982, would likewise not have
met the listing criteria. While the doctor's retrospective conclusions may accurately
state that Mrs. Grebenick manifested symptoms of multiple sclerosis prior to
September 30, 1982, the record does not support his conclusion that Mrs. Grebenick
was "disabled" within the meaning of the listing criteria in the regulations. Because
the doctor's conclusion is unsupported by his
11
medical records, the ALJ was free to reject his retrospective diagnosis. See Prew v.
Chater, 89 F.3d 841 (8th Cir. 1996).
We turn next to the subjective lay testimony. Once the diagnosis is
established, but the severity of the degenerative condition during the relevant period
is unanswered, the claimant may fill the evidentiary gap with lay testimony.
Basinger, 725 F.2d 1169. The ALJ must consider this evidence, even if it is
uncorroborated by objective medical evidence. Id. Under this standard, the ALJ's
credibility determination of the lay witnesses becomes critical, because the ALJ is, of
course, free to believe or disbelieve any or all of the lay witnesses. Here, the ALJ
fully considered the subjective evidence. He discredited Mr. Grebenick's testimony
because, in many respects, it was contrary to the medical records in the early years
of Mrs. Grebenick's treatment. We agree with the ALJ that the inconsistencies may
understandably be due to the fact that Mr. Grebenick was attempting to recall his
wife's specific condition 13 years ago, without the aid of any contemporaneous
documentation. The neighbors' affidavits are similarly inconsistent, possibly for the
same expired-time reason. In any event, we will not disturb the ALJ's credibility
determinations. Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990).
Mrs. Grebenick argues the ALJ erroneously required her to provide medical
findings prior to September 30, 1982. We agree with the district court that the ALJ
considered the lack of contemporaneous medical evidence relating to her multiple
sclerosis disease as one factor among several others in his credibility determination
regarding the lay testimony. There was no error in considering this factor. See
Polaski, 739 F.2d at 1322.
Mrs. Grebenick also contends that the ALJ improperly based his decision on
the date of diagnosis, rather than on the date she became disabled. The record
12
indicates otherwise. The ALJ properly sought to determine whether Mrs. Grebenick
was disabled on or before September 30, 1982.
Mrs. Grebenick next claims the ALJ failed to comply with Social Security
Ruling (SSR) 83-20 by inferring the onset date of her disability without the aid of a
medical advisor. Once published, Social Security Rulings are "binding on all
components of the Social Security Administration." 20 C.F.R.
§ 422.406(b)(1)(1996); see Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984). SSR
83-20 sets forth guidelines for determining the onset date of a claimant's disability.
The ruling defines the disability onset date as "the first day an individual is disabled
as defined in the Act and the regulations." SSR 83-20, 1983 WL 31249 (S.S.A.). In
determining the onset date for disabilities of nontraumatic origin, the ALJ should
consider the applicant's allegations, her work history, and the medical and other
evidence of her condition.
With slowly progressive impairments, it is sometimes impossible to
obtain medical evidence establishing the precise date an impairment
became disabling. Determining the proper onset date is particularly
difficult, when, for example, the alleged onset and the date last worked
are far in the past and adequate medical records are not available. In
such cases, it will be necessary to infer the onset date from the medical
and other evidence that describe the history and symptomatology of the
disease process. . . .
How long the disease may be determined to have existed at a
disabling level of severity depends on an informed judgment of the facts
in the particular case. This judgment, however, must have a legitimate
medical basis. At the hearing, the administrative law judge (ALJ)
should call on the services of a medical advisor when onset must be
inferred. . . . If reasonable inferences about the progression of the
impairment cannot be made on the basis of the evidence in [the] file and
additional relevant medical evidence is not available, it may be
necessary to explore other sources of documentation. . . . The impact
13
of lay evidence on the decision of onset will be limited to the degree it is not contrary
to the medical evidence of record.
SSR 83-20 (emphasis added).
The Commissioner argues that SSR 83-20 applies only for the limited purpose
of determining the precise date of onset when the ALJ has already found that a
claimant had established her disability and her entitlement to benefits. According to
the Commissioner, the ALJ did not need a medical advisor to determine the onset of
that disability in this case, because the ALJ determined that Mrs. Grebenick wasn't
disabled during the time on or before September 30, 1982.
We cannot agree with the Commissioner's construction of SSR 83-20. The
introduction to SSR 83-20 explains that the determination of the onset date is critical
because "it may affect the period for which the individual can be paid and may even
be determinative of whether the individual is entitled to or eligible for any benefits."
SSR 83-20. This language plainly indicates the ruling is intended to apply to cases
such as the one at bar.
It is important to understand that the issue of whether a medical advisor is
required under SSR 83-20 does not turn on whether the ALJ could reasonably have
determined that Mrs. Grebenick was not disabled before September 30, 1982.
Rather, when there is no contemporaneous medical documentation, we ask whether
the evidence is ambiguous regarding the possibility that the onset of her disability
occurred before the expiration of her insured status. See Reid v. Chater, 71 F.3d
372, 374 (10th Cir. 1995) ("[A] medical advisor need be called only if the medical
evidence of onset is ambiguous."). If the medical evidence is ambiguous and a
retroactive inference is necessary, SSR 83-20 requires the ALJ to call upon the
services of a medical advisor to insure that the determination of onset is based upon
14
a "legitimate medical basis." SSR 83-20; DeLorme v. Sullivan, 924 F.2d 841, 848
(9th Cir. 1991) ("In the event that the medical evidence is not definite concerning the
onset date and medical inferences need to be made, SSR 83-20 requires the
administrative law judge to call upon the services of a medical advisor and to obtain
all evidence which is available to made the determination.").
We agree with the district court that the medical evidence in this case was
unambiguous, thereby obviating the need for a medical advisor. As we discussed
above, the medical records of 1983 and 1984 indicate that Mrs. Grebenick's
symptoms had not yet reached the disabling level of severity described in the
multiple sclerosis listings. Once again, because multiple sclerosis is a progressive
disease, Mrs. Grebenick's failure to meet the listing criteria in 1983 and 1984 leaves
no doubt that she also failed to meet them on or before September 30, 1982. We
therefore conclude that no ambiguity exists as to whether she was disabled before
her insured status expired, and the ALJ did not err in failing to employ the assistance
of a medical advisor.
After concluding that Mrs. Grebenick's symptoms did not meet the terms of
the multiple sclerosis listing, the ALJ proceeded to the fourth step in the analysis --
determining whether Mrs. Grebenick could perform her past relevant work as a
secretary. Giving her the benefit of any doubt about her condition, as it was
described in the medical documentation, the ALJ found that she was "incapable of
performing occupations requiring lifting in excess of 10 pounds, prolonged standing,
[or] excessive walking and/or climbing." (Admin. Agency R. at 23.) Even with
these limitations, however, the ALJ concluded that Mrs. Grebenick was able to
perform her past secretarial work. The substantial evidence in the record as a whole
supports this conclusion.
Because substantial evidence supports the Commissioner's conclusion that
Mrs. Grebenick could perform her past relevant work, we need not inquire whether
15
she could perform other substantial gainful activity that existed in the national
economy. We have carefully considered Mrs. Grebenick's remaining arguments and
find them without merit.
III.
In sum, we conclude that the ALJ considered all of the evidence, including the
contemporaneous medical records, the medical records dating from 1983 through the
time of the hearing, the subjective testimony, and the treating doctor's retrospective
diagnosis. There is substantial evidence in the record as a whole supporting the
ALJ's conclusion that while Mrs. Grebenick was impaired by her multiple sclerosis
on September 30, 1982, her symptoms at that time did not meet the multiple sclerosis
severity listing criteria. There is also substantial evidence supporting the ALJ's
conclusion that, as of September 30, 1982, Mrs. Grebenick was capable of
performing secretarial work. Therefore, the denial of benefits was proper.
We affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
16