Debra J. Wheeler v. Kenneth Apfel ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3948
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Debra J. Wheeler, *
*
Appellant, * Appeal from the United States
* District Court for the Western
v. * District of Missouri
*
Kenneth S. Apfel,
Commissioner of Social Security, *
*
Appellee. *
__________
Submitted: April 12, 2000
Filed: August 31, 2000
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Before WOLLMAN, Chief Judge, MAGILL, Circuit Judge, and FRANK,1 District
Judge.
FRANK, District Judge.
Debra J. Wheeler appeals from the district court’s2 order affirming the denial of
her requests for disability insurance benefits, under Title II of the Social Security Act,
1
The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota, sitting by designation.
2
The Honorable John T. Maughmer, Chief Magistrate Judge, United States
District Court for the Western District of Missouri.
42 U.S.C. § 401, et seq., and for supplemental security income, under Title XVI of the
Social Security Act, 42 U.S.C. § 1381, et seq. We affirm.
I.
Wheeler was born on April 8, 1954, and has received her high school
equivalency diploma. Her past work experience includes positions as a photo
laboratory worker, punch press operator, hand packager, and cosmetologist. Wheeler
filed her applications for disability insurance benefits and supplemental security income
on March 3, 1994, alleging that she is unable to work due to worsening conditions of
asthma, fibromyalgia, and rheumatoid arthritis.
The Social Security Administration denied Wheeler’s application initially and
again on reconsideration. Wheeler then requested and received a hearing before an
Administrative Law Judge (ALJ), who also denied Wheeler’s application. Upon
review, the Appeals Council of the Social Security Administration vacated the ALJ’s
decision and remanded the case for further proceedings.
Following a supplemental hearing, the ALJ again evaluated Wheeler’s claim
according to the five-step sequential analysis prescribed by the social security
regulations. See 20 C.F.R. §§ 404.1520(a)-(f); Bowen v. Yuckert, 482 U.S. 137, 140-
42 (1987) (describing the five-step analysis). The ALJ determined that Wheeler met
the disability insured status requirements as of February 25, 1992, as she had not
engaged in substantial gainful activity since that date. The ALJ also found, however,
that although Wheeler suffered from severe impairments, her impairments were not
listed in, nor medically equal to, those listed in 20 C.F.R. § 404, Subpart P,
Appendix 1. The ALJ concluded that Wheeler was unable to perform her past relevant
work, but possessed the residual functional capacity to perform a significant number
of jobs in the national economy. Consequently, the ALJ found that Wheeler was not
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under a disability as defined in the Social Security Act and denied her application for
benefits accordingly.
The Appeals Council denied Wheeler’s request for further review, thereby
making the ALJ’s decision the final decision of the Commissioner. Wheeler then
sought review in the district court pursuant to 52 U.S.C. § 405(g). The district court
affirmed the decision of the Commissioner.
On appeal before this court, Wheeler argues that the ALJ erred by: (1) failing
to properly consider the testimony of Wheeler and her husband, pursuant to Polaski v.
Heckler, 739 F.2d 1320 (8th Cir. 1984) (subsequent history omitted); (2) failing to
consider the totality of the medical evidence and instead unduly relying upon the
findings of a non-treating physician; and (3) improperly relying upon the testimony of
the vocational expert, which was inconsistent with the record.
II.
We consider the Commissioner’s denial of benefits to determine whether
substantial evidence on the whole record supports the decision. Reeder v. Apfel, 214
F.3d 984, 987 (8th Cir. 2000). Substantial evidence is relevant evidence that a
reasonable mind would accept as adequate to support the Commissioner’s conclusion.
Craig v. Apfel, 212 F.3d 433, 435 (8th Cir. 2000). The court is required to review the
administrative record as a whole, considering evidence which detracts from the
Commissioner’s decision, as well as that which supports it. Freeman v. Apfel, 208
F.3d 687, 690 (8th Cir. 2000). We may not reverse the Commissioner’s decision
merely because substantial evidence exists in the record that would have supported a
contrary outcome. Craig, 212 F.3d at 436. Rather, if we find it is possible to draw two
inconsistent positions from the evidence and one of those positions represents the
agency’s findings, we must affirm the agency’s decision. Scott v. Chater, 112 F.3d
367, 368 (8th Cir. 1997).
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Wheeler first argues that the ALJ improperly discounted the credibility of
Wheeler and her husband and did not correctly apply the credibility factors set forth in
Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) (subsequent history omitted). In
order to properly evaluate a claimant’s subjective complaints of pain under Polaski, 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
and aggravating factors; and (5) functional restrictions. Hutton v. Apfel, 175 F.3d 651,
654-55 (8th Cir. 1999), citing Polaski, 739 F.2d at 1322. Other relevant factors include
the claimant’s relevant work history and the absence of objective medical evidence to
support the complaints. Hutton, 175 F.3d at 655. The ALJ may discount subjective
complaints of pain if inconsistencies are apparent in the evidence as a whole. Hutton,
175 F.3d at 655.
The ALJ explicitly found that Wheeler’s subjective complaints of pain were not
credible to the extent alleged, both with specific reference to the above Polaski factors
and in consideration of inconsistencies in the record as a whole. The ALJ determined
that, although Wheeler had certain symptoms that limited her functional abilities, the
evidence did not support Wheeler’s assertion that her symptoms were of such severity
so as to preclude the performance of any type of work. The ALJ first noted that,
despite Wheeler’s complaints of leg, joint, and back pain and immobility, Wheeler had
had no treating physician for two years. See Gwathney v. Chater, 104 F.3d 1043, 1045
(8th Cir. 1997) (claimant’s “failure to seek medical assistance for her alleged physical
. . . impairments contradicts her subjective complaints of disabling conditions and
supports the ALJ’s decision to deny benefits”). The ALJ further noted that Wheeler
smoked two packs of cigarettes per day, despite her complaints of asthma and despite
directions to quit by a treating physician. See Kisling v. Chater, 105 F.3d 1255, 1257
(8th Cir. 1997) (impairments that are controllable or amenable to treatment, including
certain respiratory problems, do not support a finding of disability, and failure to follow
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a prescribed course of remedial treatment, including the cessation of smoking, without
good reason is grounds for denying an application for benefits).
The ALJ then set forth a partial description of Wheeler’s history of medical
treatment, as it appeared in the record.3 The ALJ discussed, for example, the findings
of Dr. Charles Ash, who examined Wheeler on April 15, 1994. Dr. Ash determined
that Wheeler exhibited satisfactory general movement with no limp or list, that
Wheeler’s lungs exhibited no evidence of respiratory distress, that the spine showed
a full range of motion with no deformity or muscle spasm, that no evidence of swelling
or limited motion appeared in Wheeler’s fingers, that her grip was good in both hands,
that no swelling was visible in the knees or ankles, and that Wheeler’s ankles exhibited
a full range of motion. Similarly, after examining Wheeler on October 31, 1996, Dr.
Ali J. Abu-Libdeh concluded that he could find no evidence of active rheumatoid
arthritis. Dr. Abu-Libdeh determined that Wheeler’s hands, wrists, feet, and ankles
were free from arthritis and showed no swelling or tenderness, that both elbows and
shoulders were normal, that Wheeler’s knees showed minimal tenderness, and that a
mild reduction in mobility appeared to be caused by Wheeler’s obesity. The record
thus shows that the ALJ properly discounted Wheeler’s subjective complaints of
arthritic pain and immobility. See Comstock v. Chater, 91 F.3d 1143, 1147 (8th Cir.
1996) (ALJ entitled to discount claimant’s complaints of pain based upon claimant’s
failure to pursue regular medical treatment and where complaints were inconsistent
with objective medical evidence).
3
That the ALJ did not attempt to describe the entirety of Wheeler’s medical
history does not support Wheeler’s argument that the ALJ disregarded certain aspects
of the record. See Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (internal citations
omitted) (“[a]lthough required to develop the record fully and fairly, an ALJ is not
required to discuss every piece of evidence submitted . . . [and] [a]n ALJ’s failure to
cite specific evidence does not indicate that such evidence was not considered”).
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The ALJ also found that the corroborating testimony of Wheeler’s husband was
not fully credible. Although the ALJ did not list specific reasons for discrediting the
testimony of Wheeler’s husband, the omission is not fatal to the ALJ’s decision
because the same evidence supported discounting both Wheeler’s and her husband’s
testimony. See Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992) (internal
quotation omitted) (“[w]hile it is preferable that the ALJ delineate the specific
credibility determinations for each witness, 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”). We thus reject Wheeler’s argument that the ALJ
failed to properly evaluate the testimony of Wheeler and her husband.
Wheeler next argues that the ALJ made only selective use of the medical
evidence in determining Wheeler’s residual functional capacity and unduly relied upon
the findings of Dr. Abu-Libdeh, a non-treating government-paid physician.
Specifically, Wheeler alleges that the record establishes that she suffers from severe
manipulative limitations, which limitations were improperly ignored in determining her
residual functional capacity. We disagree.
The ALJ made extensive reference to Wheeler’s past medical examinations,
including examinations by Dr. James Flanery, Dr. Ash, and a treating physician in an
emergency room, as well as Dr. Abu-Libdeh. As previously discussed, both Dr. Ash
and Dr. Abu-Libdeh found no evidence of swelling in the extremities and found that
Wheeler could make a good hand grip bilaterally. Dr. Ash determined that Wheeler
had a full range of motion and Dr. Abu-Libdeh specifically concluded that he could find
no evidence of arthritis. The conclusions of both Dr. Ash and Dr. Abu-Libdeh were
the result of their examinations of Wheeler, while Wheeler had not had a treating
physician in two years.
The ALJ’s opinion thoroughly discussed Wheeler’s medical records in assessing
her physical abilities and adopting a residual functional capacity. We find that, in
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focusing on certain portions of the medical records that were consistent with his
findings, the ALJ was not ignoring the totality of the record, but rather was properly
giving specific reasons to support his conclusions. We thus conclude that the ALJ’s
assessment of Wheeler’s residual functional capacity was supported by substantial
evidence. See Craig, 212 F.3d at 436 (claimant’s argument that ALJ selectively
ignored portions of the offered medical opinions rejected where the record also
contained the opinions of consulting physicians whose observations did not support
claimant’s allegation of complete disability).
Finally, Wheeler argues that the ALJ erred in relying upon the testimony of a
vocational expert who proposed potential work for Wheeler which, according to Social
Security regulations and the Dictionary of Occupational Titles (DOT), was
incompatible and inconsistent with Wheeler’s residual functional capacity as
determined by the ALJ. Specifically, Wheeler argues that the jobs identified by the
vocational expert were unsuitable due to the standing, sitting, and stooping limitations
incorporated into Wheeler’s residual functional capacity.
We reject Wheeler’s argument. In framing his questions to the vocational expert,
the ALJ specifically asked the expert to assume a job applicant with Wheeler’s age,
education, work experience, and residual functional capacity, including her limitations
of sitting, standing, and/or walking, with normal breaks, 30 minutes at one time or 4
hours in an 8 hour day, and never stooping. In accordance with the vocational expert’s
testimony, the ALJ found that Wheeler could perform less than a full range of light
work, due to standing, walking, sitting, and stooping limitations, but would be able to
work as an expediter clerk, order clerk, addresser, mail clerk, or office helper. Wheeler
argues that the proposed jobs, as defined in the DOT, are inconsistent with her residual
functional capacity and limitations. Wheeler’s “reliance on the DOT as a definitive
authority on job requirements is misplaced, however, for DOT definitions are simply
generic job descriptions that offer the approximate maximum requirements for each
position, rather than their range.” Hall v. Chater, 109 F.3d 1255, 1259 (8th Cir. 1997)
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(internal quotations omitted). The DOT itself cautions that its descriptions may not
coincide in every respect with the content of jobs as performed in particular
establishments or at certain localities. Hall, 109 F.3d at 1259 (internal quotations
omitted). In other words, not all of the jobs in every category have requirements
identical to or as rigorous as those listed in the DOT. Hall, 109 F.3d at 1259. The
record in the present matter, including the testimony of the vocational expert, who
answered a hypothetical that included Wheeler’s limitations, supports the ALJ’s
conclusion that Wheeler could perform certain available jobs within the economy. See
Hall, 109 F.3d at 1259 (court satisfied that claimant could perform a number of jobs
within the categories the vocational expert listed, despite her impairments); see also,
Craig, 212 F.3d at 436 (Commissioner’s finding that claimant could perform certain
existing jobs affirmed where claimant could not perform full range of light work due
to standing and walking limitations, despite fact that proposed jobs did not precisely
match regulation guidelines or DOT definitions). Our review of the record shows that
the ALJ’s conclusion was supported by substantial evidence in the record as a whole.
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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