Dan GIESEKE, Plaintiff-Appellant v. Carolyn W. COLVIN, Acting Commissioner, Defendant-Appellee
No. 14-1395
United States Court of Appeals, Eighth Circuit
Submitted: Sept. 11, 2014. Filed: Nov. 3, 2014.
772 F.3d 1186
To establish equitable tolling, a party must show “some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff‘s cause of action concealed.” Varner v. Peterson Farms, 371 F.3d 1011, 1016 (8th Cir. 2004). Even viewing the evidence here in the light most favorable to Jones, Frost‘s field notes cannot reasonably be read to contradict the report that he provided to the state prosecutor. The notes indicate that bank records could not confirm the location of Dunn‘s mother on the day of the murder. Frost‘s report to the prosecutor said that Dunn had passed a polygraph test and given a statement that he was with his mother on the day of Dirksmeyer‘s death. These documents do not conflict with one another. Frost‘s decision not to pass along notes regarding inconclusive bank records does not show that he conspired with Dunn and the Russellville city government to commit a “positive act of fraud.” Id. at 1017.
Furthermore, even if Frost had fraudulently attempted to conceal his field notes, that action would not have tolled the statutes of limitations if Frost “could have discovered the fraud or sufficient other facts on which to bring [a] lawsuit, through a reasonable effort.” Varner, 371 F.3d at 1017. Jones’ investigator testified that in February or March of 2008 he had access to a typed copy of Frost‘s field notes. The investigator also testified that around the same time he conducted an independent investigation of the transactions mentioned in Frost‘s notes. This testimony shows that Jones could have discovered the contents of Frost‘s notes more than three years before he filed his complaint in December 2011.
Jones offers additional evidence to support his conspiracy claims, but this evidence was similarly available to him more than three years before he filed his complaint. Jones’ counsel knew that the police had investigated Dunn as a potential suspect in Dirksmeyer‘s murder before Jones was acquitted of the crime. DNA evidence found in Dirksmeyer‘s apartment that indicated Dunn had been at the scene of the crime was available to Jones in December 2007. Even if the statutes of limitations were tolled until Jones’ investigator undertook an independent examination of Dunn‘s alibi in March 2008, Jones still failed to file his complaint within the applicable three year time period. His claims are time barred.
For these reasons we affirm the judgment of the district court.
Jeremiah Hayes, Special AUSA, James Potter, Assistant Regional Counsel, Kansas City, MO, William Purdy, AUSA, Des Moines, IA, for appellee.
Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
LOKEN, Circuit Judge.
An Administrative Law Judge (“ALJ“) concluded that Dan Gieseke was not disabled and denied his applications for Social Security disability insurance benefits and supplemental security income. Gieseke sought judicial review of the adverse agency decision and now appeals the district
I.
Gieseke‘s long history of low back pain was aggravated by a work injury in 2006. After physical therapy, he returned to work subject to restrictions. He last worked in October 2008. His disability application listed lower back issues, dizziness, and leg problems as limiting conditions that prevent him from working.
After a hearing at which Gieseke and a vocational expert (“VE“) testified, the ALJ found that Gieseke has severe impairments—degenerative disc disease of the lumbar spine, obesity, and a history of substance abuse. He can lift and carry twenty pounds occasionally and ten pounds frequently; can stand and sit for six hours a day; can occasionally balance, stoop, kneel, crouch, or crawl; should never be around heights or moving machinery or be required to climb ropes, ladders, or scaffolds; and requires a cane when standing. He is unable to perform his past relevant work. He has the residual functional capacity (“RFC“) to perform light work but is impeded by limitations that “erode the unskilled light occupational base.” Crediting the VE‘s answer to a hypothetical question incorporating these limitations, the ALJ found that Gieseke has the RFC to perform cashier, security guard, and usher positions that exist in sufficient numbers in the national economy and in Iowa to render him not disabled.
II.
A. Gieseke argues the ALJ erred in not giving controlling weight to the opinion of Gieseke‘s treating physician, Dr. Alan Bollinger. Responding in December 2011 and July 2012 to forms listing the Social Security Administration‘s (“SSA“) estimates of Gieseke‘s physical limitations, Dr. Bollinger opined that Gieseke was limited to lifting less than ten pounds occasionally or frequently, standing for less than two hours per workday, frequently changing sitting position during the workday, and never climbing, stooping, kneeling, crouching, or crawling. These limitations, substantially more restrictive than the ALJ‘s RFC findings, would mean that Gieseke was unable to perform the full range of sedentary work. At his age, education, and work history, this requires a finding that he is disabled under the SSA‘s “Grids.” See
“A treating physician‘s opinion is given controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence.” House v. Astrue, 500 F.3d 741, 744 (8th Cir. 2007) (quotation omitted). Here, like the district court, we conclude that substantial evidence supports the ALJ‘s decision to give no weight to Dr. Bollinger‘s opinions. The opinions were not supported by objective medical evidence in the administrative record, which showed degenerative lumbar disc disease that did not require surgery and a normally-aligned spine. Based almost entirely on Gieseke‘s subjective complaints, Dr. Bollinger‘s opinions were rejected by two state agency medical advisors, who re-
B. Gieseke argues that the SSA Grids require a determination that he is disabled, specifically,
C. When a claimant cannot perform his past relevant work, the Commissioner has the burden of producing evidence that he has the RFC to adjust to other work. See
Gieseke argues that this testimony created an unexplained conflict between the VE‘s testimony and the DOT that requires remand for an additional hearing. See generally Welsh, 765 F.3d at 929-30. We agree with the district court there was no conflict. The DOT provides “generic job descriptions that offer the approximate maximum requirements for each position,” not the number of jobs that exist in each category. Wheeler v. Apfel, 224 F.3d 891, 897 (8th Cir. 2000). Thus, when a claimant has a limitation that affects his ability to perform every job within a generic range, such as Gieseke‘s need to use a cane, the VE may reduce his estimate of the number of existing jobs the claimant can perform. Welsh, 765 F.3d at 930. Implicitly recognizing that this type of testimony does not create a “conflict” with the DOT, Gieseke argues the VE‘s testimony was unreliable because it was based on a Journal of Forensic Vocational Analysis study, rather than her own experience. That issue is judicially reviewable. But as we explained in Welsh, whether “the VE‘s explanations were based upon insufficient personal experience and unreliable scholarly literature ... were fact issues for the ALJ to resolve.” Id. The ALJ deemed the VE‘s testimony reliable. After careful review, we conclude that substantial evidence supports the ALJ‘s finding that a person with Gieseke‘s RFC can perform a sufficient number of existing jobs based on the VE‘s testimony.
LOKEN
CIRCUIT JUDGE