Karen Hutton v. Kenneth S. Apfel ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-2055
___________
Karen Hutton, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Kenneth S. Apfel, Commissioner, *
Social Security Administration, *
*
Appellee. *
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Submitted: December 16, 1998
Filed: May 5, 1999
___________
Before FAGG, HEANEY, and WOLLMAN,1 Circuit Judges.
___________
WOLLMAN, Chief Judge.
Karen Hutton appeals from the district court’s2 judgment affirming the denial of
her application for social security disability benefits under Title II of the Social Security
1
The Honorable Roger L. Wollman became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 24, 1999.
2
The Honorable Henry Jones, United States Magistrate Judge for the Eastern
District of Arkansas, to whom the case was submitted pursuant to the consent of the
parties under 28 U.S.C. § 636(3).
Act, 42 U.S.C. §§ 216(i) and 223, and supplemental security income under Title XVI
of the Social Security Act, 42 U.S.C. §§ 1602 and 1614(a)(3)(A). We affirm.
I.
Hutton, who was born on January 30, 1964, has a high-school education. Her
past relevant work includes work as an assembler, stainer, molder, and spot welder.
Hutton filed an application for disability insurance benefits and supplemental security
income on April 1, 1992. She alleged a disability onset date of January 13, 1992,
claiming that she was unable to work due to Hodgkin’s disease and the secondary
effects of chemotherapy.
The Social Security Administration denied Hutton’s application initially and
again on reconsideration. On September 27, 1995, the district court remanded her case
for consideration of additional evidence. A second hearing was held before an
Administrative Law Judge (ALJ) on April 11, 1996.
The ALJ evaluated Hutton’s claim according to the five-step analysis prescribed
by the Social Security Regulations. See 20 C.F.R. §§ 404.1520(a)-(f); see also Bowen
v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the five-step process). He
determined that Hutton had severe impairments, including neuropathy and fibromyalgia,
but that she did not have an impairment or combination of impairments listed in the
regulations. See Appendix 1, Subpart P, Regulations No. 4. The ALJ discredited her
subjective complaints of pain, finding that they were inconsistent with the overall
record. At step four, the ALJ concluded that Hutton was not capable of performing her
past relevant work as a welder. At step five, the ALJ found that Hutton could perform
a full range of sedentary work with the following restrictions: no jobs requiring foot
controls, requiring work at heights, around moving hazardous machinery, involving the
operation of automotive equipment, or jobs requiring continuous fine dexterous
movements of either hand. Accordingly, the ALJ denied Hutton’s claim.
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The Appeals Council denied Hutton’s request for further review, and the ALJ’s
decision thereby became the final decision of the Commissioner. Hutton subsequently
appealed to the district court pursuant to 42 U.S.C. § 405(g). The district court granted
the Commissioner’s motion for summary judgment, finding that substantial evidence
supported the Commissioner’s decision.
II.
We will uphold the Commissioner’s determinations if they are supported by
substantial evidence in the record as a whole. See Spradling v Chater, 126 F.3d 1072,
1073-74 (8th Cir. 1997). Substantial evidence is relevant evidence which a reasonable
mind would accept as adequate to support the Commissioner’s conclusion. See Woolf
v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). In determining whether the existing
evidence is substantial, “we must consider evidence that detracts from the
[Commissioner’s] decision as well as evidence that supports it.” Id. We may not
reverse the Commissioner’s decision merely because substantial evidence exists in the
record that would have supported a contrary outcome. See Smith v. Shalala, 987 F.2d
1371, 1374 (8th Cir. 1993).
Hutton contends that debilitating pain prevents her from working and that the
ALJ improperly discounted her subjective complaints. “As is true in many disability
cases, there is no doubt that the claimant is experiencing pain; the real issue is how
severe that pain is.” Spradling, 126 F.3d at 1074 (quoting Woolf, 3 F.3d at 1213). The
ALJ concluded that Hutton’s subjective complaints of pain were not supported by the
evidence and not credible to the extent alleged.
In order to properly evaluate a claimant’s subjective complaints of pain, the ALJ
is required to make a credibility determination by taking into account the following
factors: (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of
the pain; (3) the dosage, effectiveness, and side effects of medication; (4) precipitating
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and aggravating factors; and (5) functional restrictions. See Polaski v. Heckler, 739
F.2d 1320, 1322 (8th Cir. 1984) (subsequent history omitted). Other relevant factors
include the claimant’s relevant work history and the absence of objective medical
evidence to support the complaints. See id. The ALJ may discount subjective
complaints of pain if inconsistencies are apparent in the evidence as a whole. See
Spradling, 126 F.3d at 1075.
The record supports the ALJ’s determination that Hutton’s subjective complaints
of disabling pain were not credible to the extent alleged. William E. Wilkins, Ph.D., a
specialist in neuroclinical and forensic psychology, to whom Hutton was referred by
her attorney, opined that Hutton’s symptoms were a result of psychological rather than
physical distress. Hutton testified that her daily activities included making breakfast,
washing dishes, washing clothes, visiting with friends, watching television, and driving
an automobile. The ALJ noted that Hutton’s daily activities were inconsistent with a
claim of total disability. See Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1995); Nguyen
v. Chater, 75 F.3d 429 (8th Cir. 1995); Novotny v. Chater, 72 F.3d 669, 671 (8th Cir.
1995). The ALJ also found that no doctor had placed Hutton on any physical
restrictions or advised that she participate in physical therapy. The lack of physical
restrictions militates against a finding of total disability. See Smith, 987 F.2d at 1374.
The ALJ further noted that Hutton’s work history indicated a lack of motivation to
return to work activity. See Woolf, 3 F.3d at 1214 (stating that a claimant’s credibility
is lessened by a poor work history).
Hutton argues that she is disabled because of pain related to fibromyalgia. See
Cline v. Sullivan, 939 F.2d 560, 567-68 (8th Cir. 1991) (recognizing that fibromyalgia
can be disabling). We disagree. The evidence shows that Hutton received seventy-five
trigger point injections over a two year period. She testified that the trigger point
injections relieved the pain and “made the knots go down.” Impairments that are
controllable or amenable to treatment do not support a finding of total disability. See
Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997); but cf. Kelley v. Callahan, 133
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F.3d 583, 589 (8th Cir. 1998) (noting that trigger point injections may provide
substantial evidence to support a finding of disability due to fibromyalgia).
Accordingly, the evidence as a whole supports the ALJ’s conclusion that Hutton’s
testimony was credible to the extent that it establishes that she has some pain, but not
to the extent that it would support her claim that she cannot perform any type of work.
See Woolf, 3 F.3d at 1214.
Hutton also argues that the ALJ failed to consider the effects of somatoform pain
disorder, a mental disorder that causes a belief that physical ailments are more serious
than the clinical data would suggest. See Merck Manual 1590-91 (16th ed. 1992).
There is little or no objective medical evidence to support a finding of total disability
based on Hutton’s mental impairments, however. The ALJ found that she had failed
to maintain a consistent treatment pattern for her alleged mental impairments and that
her daily activities were not indicative of one suffering from a severe mental
impairment, findings that we conclude are supported by substantial evidence in the
record.
Because the ALJ found that Hutton cannot perform her past relevant work, the
burden shifted to the Commissioner to prove that a significant number of jobs existed
in the regional economy that Hutton was capable of performing. To meet this burden,
the ALJ called as a witness a vocational expert, asking the expert to consider a
hypothetical individual of Hutton’s age, education, and past work experience with a
history of Hodgkin’s disease, residual neuropathy due to chemotherapy, and myalgia
of unknown origin, all of which produce the following limitations: “the inability to
perform prolonged standing or walking, no lifting or carrying more than ten pounds on
an occasional basis, no jobs requiring foot controls, no jobs requiring work at heights,
around hazardous machinery, or involving automotive equipment, and no jobs requiring
continuous fine dexterous movements of either hand.” Admin. Tr. at 427-28. The
vocational expert responded that such an individual could perform the work of a
cashier, of which approximately 8,000 jobs were located in Arkansas.
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“Testimony from a VE based on a properly-phrased hypothetical question
constitutes substantial evidence.” Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996). A
proper hypothetical question presents to the vocational expert a set of limitations that
mirror those of the claimant. See id. at 676. Hutton contends that the ALJ’s
hypothetical question failed to state precisely her physical limitations. She argues that
the medical evidence indicates that she is prevented from performing any fine dexterous
hand movements, rather than from only those tasks requiring continuous fine dexterous
hand movements. Although Dr. Scroggin and Dr. Hughes, two of her treating
physicians, indicated that Hutton’s ability to perform fine manipulation was restricted,
the ALJ found that their opinions were highly inconsistent with the objective medical
evidence, especially as to the extent of the limitations alleged.
The ALJ gave greater weight to the opinion of Dr. Peggy Brown, a board
certified member of the American Academy of Neurological and Orthopedic Medicine
and Surgery, who examined Hutton at the request of the Social Security Administration.
Although Dr. Brown’s sensory examination revealed “Decreased to light touch, pin and
temperature distally, mainly in her feet, but to some degree in her hands,” Dr. Brown
reported that she could not “make any judgment on [Hutton’s] motor strength because
her effort was so poor and inconsistent throughout [the] examination.” Dr. Brown
noted that “Ms. Hutton is taking a very unusual combination of multiple medications,”
(eight in number by our count) and that “I think at least some of what I am seeing is
side effects of medication today.” Dr. Brown continued by reporting,
I think her main problem today is that she needs to be detoxified from all
of these drugs and she may need to go to an inpatient setting to do that.
She may have fibromyalgia. She probably has a sensory neuropathy
secondary to the vincristine. Those do take months to resolve. I do note
that she has had return of her reflexes, which were previously documented
as absent, so that is a positive sign indicating that she has had some
recovery.
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In addition to Dr. Brown’s observations, Dr. Wilkins found, after subjecting her to a
finger tapping test (as well as to a number of other tests), that Hutton’s finger tapping
scores “were approximately 2 standard deviations above the average. [Hutton’s] grip
strength is about 2 standard deviations below the average on both the right and left
hand. We see a reduction in general gross motor strength but no reduction in fine
motor skills.”
As noted earlier, Dr. Wilkins was of the opinion that Hutton’s symptoms were
the result of psychological rather than physical distress. He recounted at some length
the relationship between Hutton’s psychological makeup and her physical complaints,
noting that persons with her makeup “evidence multiple physical complaints. A wide
variety of physical symptomology is apt to be presented including back pain,
headaches, gastrointestinal difficulties, numbness, tremors, etc.”
It was for the ALJ to resolve conflicts in the evidence and to decide which
evidence was best supported by the record. See Bentley v. Shalala, 52 F.3d 784, 785
(8th Cir. 1994). We conclude that the ALJ’s finding that Hutton was restricted from
only those sedentary jobs that require continuous fine dexterous movement of either
hand finds support in the record and that his decision that Hutton is not disabled is thus
supported by substantial evidence in the record as a whole.
The judgment is affirmed.
HEANEY, Circuit Judge, dissenting.
I have no alternative but to dissent. The ALJ not only ignored the law of this
circuit, but misstated the facts in several important respects.
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Ms. Hutton's Daily Activities
The ALJ stated that Hutton's daily activities were certainly indicative of an
individual who is not completely unable to work, and for that reason held that her
testimony relating to her inability to work was not credible. This court, the district
court, and the ALJs in this circuit are bound by the en banc decision of this court in
McCoy v. Schweiker, 683 F.2d 1138 (8th Cir. 1982) (en banc). There we stated that
the ability to do sedentary work "is the ability to perform the requisite physical acts day
in and day out, in the sometimes competitive and stressful conditions in which real
people work in the real world.” Id. at 1147. We reiterated this standard in Thomas v.
Sullivan, 876 F.2d 666, 669 (8th Cir. 1989), where we said: "The ability to do light
housework with assistance, attend church, or visit with friends on the phone does not
qualify as the ability to do substantial gainful activity." This standard has correctly
been applied by this court in numerous other cases. See, e.g., Wilcutts v. Apfel, 143
F.3d 1134, 1137 (8th Cir 1998); Ingram v. Chater, 107 F.3d 598, 604 (8th Cir. 1997);
Rainey v. Department of Health & Human Servs., 48 F.3d 292, 293 (8th Cir. 1995);
Neely v. Shalala, 997 F.2d 437, 442 (8th Cir. 1993); Cline v. Sullivan, 939 F.2d 560,
566 (8th Cir. 1991); Kouril v. Bowen, 912 F.2d 971, 975 (8th Cir. 1993); Easter v.
Bowen, 867 F.2d 1128, 1130 (8th Cir. 1989). Notwithstanding our en banc opinion,
ALJs in this circuit continue to ignore the teachings of McCoy and its progeny. We
should not permit this.
I must admit that one can find cases in this circuit that ignore McCoy, and the
majority has found three of them, but I cannot ignore an en banc decision of this court.
Obviously there are cases in which daily activities are such that they clearly
demonstrate a claimant's ability to work full time in our competitive economy, but this
is not one. Moreover, contrary to our statement in Hall v. Chater, 62 F.3d 220, 223 (8th
Cir. 1995), that "[w]hen making a determination based on [daily activities] to reject an
individual's complaints, the ALJ must make an express credibility finding and give his
reasons for discrediting the testimony," the ALJ simply listed the claimant's daily
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activities and failed to explain how or why they show that claimant can perform a full-
time job on a continuing and sustained basis.
To make matters worse, the ALJ does not describe accurately Hutton's daily
activities. She and her daughter live alone. She fixes breakfast for her 14-year-old
daughter and does the dishes with her daughter. The daughter does the dusting, Hutton
washes clothes, which are hung out to dry by both. Hutton watches the news for about
a half hour, listens to the radio, and walks around the house. She has no hobbies, she
drives infrequently, she visits her mother if her mother picks her up, and goes to church
if she gets a ride. Someone else mows the lawn and tends the flowers. Hutton can
walk one-half block and sit for one-half hour and has problems with concentration.
This is hardly the portrait of someone who can hold down a full-time job.
The Hypothetical Posed by the ALJ
We have consistently held that questions posed to a vocational expert should set
out precisely the claimant's physical and mental impairments. "If a hypothetical
question does not include all of the claimant's impairments, limitations, and restrictions,
or it is otherwise inadequate, a vocational expert's response cannot constitute
substantial evidence to support a conclusion of no disability." Cox v. Apfel, 160 F.3d
1203, 1207 (8th Cir. 1998); see Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994); Totz
v. Sullivan, 961 F.2d 727, 730 (8th Cir. 1992); Greene v. Sullivan, 923 F.2d 99, 101
(8th Cir.1991).
The hypothetical posed violated the precept established in these cases. First, it
failed to state that Hutton could only sit for one-half hour. The evidence of this
condition is uncontroverted. As social security regulations provide that sedentary work
involves sitting most of the time, 20 C.F.R. § 404.1567(a) (1998), the failure to include
any statement as to her ability to sit for a limited period means that the hypothetical
does not meet minimum standards.
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Second, the hypothetical with respect to Hutton's ability to perform repetitive,
fine hand movement, whether occasionally or frequently, is hopelessly confusing. At
the risk of lengthening this dissent, I quote the full colloquy:
Q (by ALJ) Well, let me ask you a hypothetical question, Dr.
Sales, to please assume an individual of the claimant's age and education
as indicate[d] in the record; with the work experiences you just described;
who has a history of Hodgkin's disease which is currently in remission but
who does have residual neuropathy do [sic] to the chemotherapy and
residual myalgia of unknown origin, all of which produce the following
limitations[:] the individual is unable to do any prolonged standing or
walking; no lifting and carrying of more than ten pounds on an occasional
basis; no jobs requiring operation of foot controls; no jobs requiring work
at heights or around moving hazardous machinery or where required to
operate automotive equipment; and no jobs requiring continuous fine
dexterous movements of either hand; I'll be happy to repeat those. I see
you're taking notes.
A Yeah, I think I have it.
Q With those limitations, would the individual be able to return to
the past relevant work you described?
A No, sir, she would not.
Q With those limitations, would there be any other jobs in the
economy, either unskilled or semi-skilled, using transferable skills, that
that individual could perform?
A Not using transferable skills.
Q Okay. Would there be any unskilled jobs which an individual
with those limitations could perform?
A Well, the first thing that comes to mind would be in an entirely
different area. Entry level work for an individual working as a cashier,
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again, there's some in Arkansas, around 1992, some -- and through '94, some 20,000
such people, 40 percent of 8000 of those are rated sedentary, which would mean that
in that case, she could sit or stand, the lift would be occasional ten pounds or less. She
would have to use her hands and fingers, obviously, to make transactions, but it's not
considered nor defined as continuous fine dexterity.
Q If the limitation were on frequent fine dexterous movements of
the hands, would that restrict her from doing that job as a cashier?
A Frequent fine --
Q Frequent to fine is I guess anywhere from one-third to two-thirds
on work day?
A -- well, fine dexterity I think is one notch more sophisticated
than work of a cashier, hence, it would possibly leave her within the
rhelm [sic] of that work activity in my judgment. . .
Q (by attorney) [I]f the person were unable to use occasional use
of fine dexterity, would that make a difference or is the difference fine
dexterity?
A That is one of the difference, the frequency, of course, would
have an impact on that.
Q Would there be a cashier job open for somebody who could not
use only less than one-third, which I guess is the occasional use of fine
dexterity, use of hands?
A If she could use it less than a third?
Q Yeah, I believe that's --
A During the day. I would, yes, because she would have to use it
throughout the day at various periods of times, where it would add up to
one-third of the time.
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Q [W]ould there be any jobs for such a person that could not use
the occasional use of fine dexterity?
A Occasional -- with all other factors in the hypothetical there?
Q Yes, please.
A . . . I think it would be very difficult.
(Admin. Tr. at 427-30) (emphasis added).
Certainly an ALJ can insist that vocational experts be more exacting than this.
The vocational expert seems to be saying that if there is a need to use fine dexterous
movements frequently or occasionally, that Hutton would not be able to perform a
cashier's job. If only occasionally, then she would be able to, but his meaning is
unclear. Moreover, there is no evidence in the record that Hutton can perform the
numerous duties of a cashier.3
The Medical Evidence
The ALJ concedes that Hutton's treating physicians have stated on several
occasions that she is disabled. He also concedes that great weight should be given to
their opinions, but promptly proceeds to disregard them, saying that he has given
greater weight to the opinion of Dr. Peggy Brown, retained by the Social Security
Administration. Not only did the ALJ err in disregarding the opinions of Ms. Hutton's
treating physicians because "[t]he opinion of a treating physician is entitled to great
3
The Dictionary of Occupational Titles lists the ability to operate office machines
such as a typewriter, computer, and adding, calculating, bookkeeping, and check-
writing machines as a requirement for a clerical cashier. This job description also
requires the ability to prepare collection, disbursement, and bank-reconciliation reports.
See 1 Dictionary of Occupational Titles § 211.362-010, at 183 (rev. 4th ed. 1991)
(defining requisite abilities for position of Cashier I).
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weight 'unless it is unsupported by medically acceptable clinical or diagnostic data,'"
Ghant v. Bowen, 930 F.2d 633, 639 (8th Cir. 1991) (quoting Kirby v. Sullivan, 923 F.2d
1323, 1328 (8th Cir.1991)), but he also erred in holding that Dr. Brown reported
Hutton was not disabled on the date of her examination three years after the onset of
Hodgkins disease. In fact, Dr. Brown reported:
[H]er neurologic exam reveals possibly a sensory neuropathy. . . .
. . . [W]hat I am seeing is side effects of medication today. She has
very marked nystagmus, [this is defined as an involuntary, rapid, rhythmic
movement of the eyeball which may be horizontal, vertical, rotational or
mixed] probably due to the narcotics or the Dilantin. . . .
. . . [H]er main problem today is that she needs to be detoxified
from all of these drugs and she may need to go to an inpatient setting to
do that. She may have fibromyalgia. She probably has a sensory
neuropathy secondary to the vincristine. Those do take months to resolve.
. . . This lady probably should go back to her internist or oncologist to
have her medications changed or adjusted and she may, if she is having
that much difficulty with pain probably should be seen in a chronic pain
clinic or even admitted for detoxification.
(Admin. Tr. at 627.)
The only conclusion that one can draw from Dr. Brown's report is that Hutton
was disabled on December 7, 1995, and that she would continue to be disabled for the
several months that it would take to detoxify and otherwise prepare her for a return to
work. Notably, Dr. Brown recommends that she return to the internist who had been
treating her for several years. Certainly, I have no quarrel with Dr. Brown's
recommendations, but there is absolutely nothing in this record to indicate that Hutton
has not been following her physicians' advice all along or that she will not do so in the
future. Based on the record in this case, neither the ALJ, the district court, nor this
court can decide what is best for Ms. Hutton. She became disabled on January 13,
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1992, and continued in that status through the hearing. It bothers me greatly that the
ALJ was not more forthright in stating Dr. Brown's full findings.
Work History
The ALJ stated:
In assessing the claimant's credibility, her work record has been examined
and the claimant has an extensive work record which appears to be of low
earnings that varies significantly from year to year. These variances and
her low earnings tend to indicate the claimant's lack of motivation to
return to work activity.
(Admin. Tr. at 383.)
To be charitable, this conclusion is not supported by the record. Realistically,
other conclusions must be drawn. The plain, simple facts are that Hutton has a GED
and no vocational or technical training beyond that level. Nevertheless, she worked full
time for the four years preceding becoming seriously ill from Hodgkins disease and
earned the following sums:
1988 $10,579
1989 $14,641
1990 $13,887
1991 $15,298
This is hardly the picture of someone who lacks motivation to work, and is not at all
bad for a woman with a GED in rural Arkansas with a young daughter at home .
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Summary
In my view, this court has no alternative but to reverse and remand to the district
court with directions to remand to the Social Security Administration with directions
to award benefits. The ALJ disregarded the law of this circuit in holding that Hutton's
daily activities were indicative of her ability to hold down a full-time job in our
competitive economy. The ALJ erred in posing an incomplete and misleading
hypothetical to a vocational expert. The ALJ erred in rejecting the diagnoses of
Hutton's treating physicians and further erred in holding that Dr. Brown believed that
Hutton was able to perform full-time work as of December 15, 1995. Finally, the ALJ
erred in holding that Hutton's work record prior to developing Hodgkins disease was
less than exemplary.
Hutton is a relatively young woman who had a good work record prior to 1992.
It may well be that if her physicians re-evaluated her and took the steps suggested by
Dr. Brown, Hutton could return to work. That certainly should be the objective, and
Hutton is obligated to follow the advice of her treating physicians. But as of now,
Hutton is clearly and legally entitled to receive disability benefits as of the date of the
onset of the disability and continuing for as long as she remains disabled.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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