Jesse L. Thomas v. Jo Anne B. Barnhart , 130 F. App'x 62 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2610
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Jesse L. Thomas, *
*
Plaintiff/Appellant, *
* Appeal from the United States
* District Court for the Eastern
* District of Arkansas
Jo Anne B. Barnhart, * [UNPUBLISHED]
*
Defendant/Appellee. *
*
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Submitted: February 16, 2005
Filed: March 18, 2005
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Before WOLLMAN, HANSEN, BENTON, Circuit Judges.
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PER CURIAM.
Jessie L. Thomas sought supplemental security income and disability insurance
benefits, alleging he was disabled due to back and knee injuries. After a hearing, the
administrative law judge concluded that while Thomas could not return to work as
a laborer, he retained the residual functional capacity to perform light exertional
work. The Appeals Council denied further review. The district court affirmed.1 This
court reviews whether the ALJ's decision is supported by substantial evidence. See
1
The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas.
42 U.S.C. § 405(g); Keller v. Shalala, 26 F.3d 856, 858 (8th Cir. 1994). Jurisdiction
being proper under 28 U.S.C. § 1291, this court affirms.
First, Thomas argues that the ALJ erred in giving greater weight to the opinion
of a consulting physician, than to the conclusion of his treating physician. The
opinion of a treating physician is ordinarily entitled to greater weight than the opinion
of a consulting physician. See Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989).
However, a treating physician's opinion must be supported by credible and persuasive
evidence. See 20 C.F.R. § 404.1527(d)(2). An ALJ may reject the opinion of any
medical expert that is inconsistent with the medical record as a whole. See Estes v.
Barnhart, 275 F.3d 722, 725 (8th Cir. 1989).
Here, the ALJ concluded that the treating physician's clinical findings and
opinions were inconsistent with the objective medical evidence in the record.
Specifically, the ALJ found that the treating physician's conservative treatment was
inconsistent with Thomas's allegations of disabling pain. See Smith v. Shalala, 987
F.2d 1371, 1374 (8th Cir. 1993). Thomas emphasizes that an MRI showed some
degenerative changes and that a CT scan showed an incomplete tear in the outer ring
of a spinal disc. The consulting physician acknowledged some disk degeneration, but
stated that Thomas is capable of working. The consulting physician observed that
Thomas had normal reflexes, free range of motion in his back without pain or
restriction, and "preserved" heel-to-toe gait and walk without a limp. The ALJ gave
greater weight to the opinion of the consulting physician, a board certified
neurosurgeon with greater expertise in Thomas's type of injuries. Greater weight is
generally given to the opinion of a specialist about medical issues in the area of
specialty, than to the opinion of a non-specialist. See 20 CFR §§ 404.1527(d)(5);
416.927(d)(5) (2003); 29 F.3d 428, 432 (8th Cir. 1994); see also Hinchey v. Shalala,
29 F.3d 428, 432 (8th Cir. 1993). This court finds that the ALJ's rejection of the
treating doctor's opinion and reliance on the consulting physician's opinion are
supported by substantial evidence.
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Second, Thomas alleges that the ALJ erred in discrediting his subjective
complaints of pain. The ALJ, in the best position to gauge the credibility of
testimony, is granted deference. See Estes, 275 F.3d at 724. Subjective complaints
may be discredited if inconsistent with the evidence as a whole. See Sullins v.
Shalala, 25 F.3d 601, 603 (8th Cir. 1994). The ALJ must fully consider all evidence
relating to subjective complaints , including the claimant's prior work record, and
observations by third parties and treating and examining physicians. See Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
In the instant case, the ALJ concluded that Thomas's complaints were not
supported by the objective medical evidence in the record. The ALJ found that the
lack of medical evidence supporting his allegations, the type of medications taken,
the lack of more aggressive treatment, his poor work record, and his functional
capabilities precluded a finding of disability. See Thomas v. Sullivan, 928 F.2d 255,
259-60 (8th Cir. 1991). The ALJ's credibility determination is supported by
substantial evidence.
Finally, Thomas contends that the ALJ failed to include all his subjective
impairments in the hypothetical question posed to the vocational expert. Specifically,
Thomas asserts that the ALJ failed to include the following restrictions: (1) no
standing after 45 minutes; (2) no prolonged standing or sitting; (3) no repetitive
bending; (4) occasionally capable of carrying objects weighing no more than 10
pounds; and (5) consistently capable of carrying objects weighing no more than 5
pounds. "[T]estimony from a vocation expert is substantial evidence only when the
testimony is based on a correctly phrased hypothetical question that captures the
concrete consequences of a claimant's deficiencies." Taylor v. Chater, 118 F.3d
1274, 1278 (8th Cir. 1997). A hypothetical question, however, need only include
impairments that are supported by the record. See Prosch v. Apfel, 201 F.3d 1010,
1015 (8th Cir. 2000).
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In this case, the hypothetical included the age, education, work record, and –
as supported by the record – the lifting, standing, walking, kneeling, and crouching
restrictions. The ALJ found that Thomas' claims of disabling impairments were not
supported by the record. Thus, the ALJ properly excluded the unsupported
impairments from the hypothetical question.
The district court's judgment is affirmed.
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