James E. Forte v. JoAnne B. Barnhart ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2111
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James E. Forte, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas
JoAnne B. Barnhart, Commissioner, *
Social Security Administration, *
*
Appellee. *
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Submitted: December 19, 2003
Filed: July 29, 2004
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Before MELLOY, McMILLIAN and BOWMAN, Circuit Judges.
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McMILLIAN, Circuit Judge.
James E. Forte appeals from a judgment of the District Court for the Eastern
District of Arkansas1 upholding a final decision of the Commissioner of the Social
Security Administration (SSA) denying his application for disability insurance
benefits under 42 U.S.C. §§ 401-433. We affirm.
1
The Honorable H.D. Young, United States Magistrate Judge for the Eastern
District of Arkansas, to whom the case was referred for decision upon the consent of
the parties under 28 U.S.C. § 636(c).
Forte was born in 1955; he has a college degree in social sciences and work
experience as a press operator and school teacher. In May 1999, he filed an
application for disability insurance benefits, alleging a disability beginning in July
1998 due to back pain. After his application was denied initially and on
reconsideration, in January 2000, Forte appeared before an administration law judge
(ALJ). He testified that in December 1997 he injured his back and neck in an
automobile accident and did not return to his job as a teacher until June 1998. About
a month after he returned to work, he took his class on a field trip to learn about farm
and work animals. While riding on a water buffalo, Forte fell off. He filed a
worker’s compensation claim and received an award on account of the fall, but was
released back to work without restrictions in October 1998. Forte worked only for
a short period, testifying that he was unable to work following the fall because of
disabling back pain and numbness in his legs. As to his daily activities, he stated that
he was studying for teacher certification and taking theology courses. He also stated
that he could drive, walk one-half mile, sit for thirty to forty-five minutes, stand
twenty to thirty minutes, and lift no more than ten pounds.
The ALJ asked a vocational expert if there were jobs available in the national
economy for a person of the same age, education, and work experience as Forte and
who could sit for forty-five minutes, stand for thirty minutes, walk one and one-half
miles, lift up to fifteen pounds, and had the option of alternately sitting, standing, and
walking. The vocational expert responded that such a person could perform
inspecting, sorting, and assembly jobs. At the conclusion of the hearing, the ALJ
stated that he would keep the record open for additional medical records.
The medical evidence is as follows. In February 1998, Dr. David Hicks treated
Forte for pain following a December 1997 automobile accident. Dr. Hicks noted that
an MRI was negative and diagnosed lumbosacral strain, prescribing physical therapy
and pain medication. Forte also saw Dr. James Ketcham, a pain management doctor.
In February 1998, Dr. Ketcham reported that Forte had pain following the accident
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and recommended trigger point injections, epidural injections and physical therapy.
On May 29, 1998, Dr. Ketcham released Forte to go back to work without
restrictions.
Following the July 1998 fall from the water buffalo, Forte saw Dr. Hicks with
complaints of pain. Dr. Hicks again diagnosed lumbosacral strain and prescribed
physical therapy and pain medications. Forte also saw Dr. Ketcham, who treated him
with trigger point and epidural injections. Dr. Hicks referred Forte to Dr. Reginald
Rutherford, who reported that Forte had a negative work-up and opined that “the best
course of action” was for Forte to return to work. Forte also saw Dr. Bruce Safman.
In September 1998, Dr. Safman reported that Forte had received injections and pain
medications and had reached maximum medical improvement. On September 30,
1998, Dr. Safman advised Forte to lose weight and increase activity and released him
to go back to work without restrictions.
In October 1998, Forte reported to Drs. Hicks and Ketcham that he had been
terminated from his teaching position, claiming that he could not work because of
disabling pain. Forte resumed physical therapy, took pain medication, and received
epidural injections from Dr. Ketcham. At Dr. Ketcham’s request, in January 1999,
a work rehabilitation specialist evaluated Forte’s functional capacity. After testing,
an occupational therapist reported that Forte could sit for forty-five minutes at a time,
stand for fifteen minutes at a time, and lift and carry thirty pounds, concluding that
Forte had “demonstrated sufficient functional capacity to work safely and
productively in light range jobs.” A February 1999 note from a physical therapist
reported that Forte had a sixty percent improvement in his symptoms and could sit
and stand for an hour and one-half.
In an April 1999 note, Dr. Ketcham stated that Forte could not return to his
teaching job, but had the functional capacity for light duty work. In a June 1999 note,
Dr. Ketcham reported that Forte had improved, was not displaying chronic pain
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behavior, and was “functional,” noting that he was taking classes and doing well in
them. In August 1999, Dr. Ketcham reported that Forte was walking six to eight
miles a week, had lost some weight, and had gone on a family vacation. With pain
medications, Forte had rated his pain as a three on a scale of one to ten, with ten being
the most intense pain.
In a January 25, 2000, letter, Dr. Lon Burba reported that he had examined
Forte for complaints of back pain. The doctor diagnosed a soft tissue injury, noting
that physical examination and an electromyography examination (EMG) were normal.
In a February 2000 report to the SSA, Dr. Hicks noted that Forte had lumbosacral
strain, moderate pain, and marked functional limitations of bending, lifting, stooping,
and prolonged standing and sitting. In a March 13, 2000, letter, Dr. Burba wrote that
Forte had radiculitis, which was suspected to be related to degenerative disc disease.
In May 2000, the ALJ denied benefits. The ALJ found that Forte had some
pain and could not return to teaching. However, the ALJ found that Forte had the
residual functional capacity (RFC) to perform sedentary work that would allow him
to alternate sitting and standing, noting the vocational expert’s testimony that such
jobs existed in the national economy.
Forte sought review in the district court, which held that substantial evidence
supported the ALJ’s decision. This appeal followed.
DISCUSSION
We must affirm the ALJ’s “findings if supported by substantial evidence on the
record as a whole.” Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004)
(internal quotation omitted). “Substantial evidence is less than a preponderance , but
enough that a reasonable mind might accept it as adequate to support a decision.” Id.
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On appeal, Forte argues that the ALJ erred in discounting his allegations of
disabling pain. As Forte points out, an ALJ may not discount allegations of disabling
pain solely on the lack of objective medical evidence. Tennant v. Apfel, 224 F.3d
869, 871 (8th Cir. 2000) (Tennant). However, lack of objective medical evidence is
a factor an ALJ may consider. Id. In this case, in addition to lack of objective
medical evidence, the ALJ considered other relevant factors. Although the ALJ “did
not explicitly discuss each [relevant] factor in a methodical fashion, he acknowledged
and considered those factors before discounting [Forte’s] subjective complaints of
pain.” Brown v. Chater, 87 F.3d 963, 966 (8th Cir. 1996) (Brown). This court has
stated that “‘[a]n arguable deficiency in opinion-writing technique is not a sufficient
reason for setting aside an administrative finding where . . . the deficiency probably
had no practical effect on the outcome of the case.’” Id. (quoting Benskin v. Bowen,
830 F.2d 878, 883 (8th Cir. 1987)).
In this case, the ALJ did not err in discounting Forte’s allegations of disabling
pain. The ALJ found that Forte’s description of his daily activities were inconsistent
with allegations of disabling pain. The ALJ noted that Forte was attending classes
and driving. See Tennant, 224 F.3d at 870 (part-time college attendance inconsistent
with allegations of disabling pain and fatigue). The ALJ also noted on a 1999 SSA
form, Forte had stated he shopped for groceries, ran errands, cooked, drove, walked
for exercise, attended church, and visited friends and relatives. See Hutton v. Apfel,
175 F.3d 651, 654 (8th Cir. 1999).
Contrary to Forte’s argument, the ALJ gave careful consideration to the
medical evidence. He reviewed the progress notes and pointed out, among other
things, that in June and August 1999, Dr. Ketcham had reported that Forte was
walking six to eight miles a week, had denied that pain was radiating down his legs,
and had not displayed chronic pain behavior. The ALJ also noted that in 1999 a
physical therapist noted that Forte had a sixty percent improvement in his symptoms
and was able to sit for one and one-half hours, walk for thirty minutes, and stand for
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one hour. Importantly, the ALJ also noted that in October 1998, doctors had released
Forte back to work with no restrictions, Brown, 87 F.3d at 965 (“lack of medical
restrictions inconsistent with claimant’s complaints of disabling pain”), and that other
medical professionals had not indicated that he was precluded from performing any
work.
Nor, as Forte argues, did the ALJ fail to give appropriate weight to Dr. Hicks’s
opinion. Although Dr. Ketcham, who was a treating physician, opined that Forte had
the functional capacity to perform light work, the ALJ concluded that Forte’s RFC
limited him to sedentary work with the option of alternately sitting and standing. In
so concluding, the ALJ relied on Dr. Hicks’s opinion that Forte had marked
restrictions in bending, lifting, stooping, and prolonged standing and sitting.
The ALJ also did not ignore the evidence from Dr. Burba. The ALJ noted that
in January 2000, Dr. Burba reported that Forte’s physical examination and EMG were
normal and diagnosed a soft tissue injury and in March 2000 reported that Forte had
radiculitis. However, the ALJ noted that the doctor did not indicate medical evidence
supported the March diagnosis and had speculated as to a cause.
We also reject Forte’s argument that the ALJ erred in failing to consider his
obesity in assessing his RFC. Although his treating doctors noted that Forte was
obese and should lose weight, none of them suggested his obesity imposed any
additional work-related limitations, and he did not testify that his obesity imposed
additional restrictions. See Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir. 2003).
Indeed, Dr. Ketcham repeatedly reported that Forte was obese, but nonetheless
believed that he could perform light work. “In light of the evidence of record, the fact
that the [ALJ’s] decision does not discuss obesity as an impairment is not fatal.” Box
v. Shalala, 52 F.3d 168, 171 (8th Cir. 1995).
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Also without merit is Forte’s argument that the ALJ’s hypothetical question to
the vocational expert was deficient. The ALJ properly included in the hypothetical
question the work-related limitations that he found credible. See Harvey v. Barnhart,
368 F.3d 1013, 1016 (8th Cir. 2004) (“fact that the ALJ omitted from his hypothetical
question those aspects of [claimant’s] subjective complaints that the ALJ considered
non-credible does not render the question faulty”). Indeed, the “hypothetical here
addressed [Forte’s] need to sit and stand at will, and required the expert to limit [his]
consideration to jobs which would allow for alternate sitting and standing.” Davis v.
Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (internal quotation omitted).
Accordingly, we affirm the judgment of the district court.
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