Marcia REED, Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Appellee
988 F.2d 812
8th Cir.
1993
Check Treatment

*1 paid $250,000 Heinen under fine David now reverse.

order we responds that government also

The of a jurisdiction because

this сourt lacks govern The appeal. notice of defective appeal Heinen’s urges

ment only that order issue.

July puts 21 order July The 21 or argument. reject

We the motion to vacate effectively

der denied Obviously, Heinen judgment. amended grant the court’s appealing from was not stay. claims that Heinen government also

The challenge the right

has waived his says government judgment.

amended bring a three months to

that Heinen waited April to vacate the amended

motion immediately.

judgment making the fine due also contends that Heinen government hands,” alleging that Heinen

has “unclean assets trying to move

and his wife is-

beyond government’s reach. These the amendment little to do with

sues have judgment, and further ‍‌‌​‌‌‌‌‌​​‌‌‌​‌​‌‌​‌‌‌‌‌​​‌‌‌‌​‌‌‌​​‌​​​​‌‌‌‌‌​​‍demonstrate provide notice

need for the district court to changing hearing to Heinen before judgment.

the terms of his convictions and sentences.

We affirm the

We the district court’s order reverse

amending judgment, David Heinen’s original

remand with directions that reinstated,

judgment that the Unit- $250,000 pay

ed to David Heinen. Stаtes REED, Appellant, SULLIVAN, M.D., Secretary

Louis W. Services,

of Health And Human

Appellee.

No. 91-3791. Appeals,

United States Court of

Eighth Circuit. Sept.

Submitted March

Decided *2 Bruce Mayes and Mayes, D.

Michael D. brief, MO, on Kirby, Springfield, K. appellant. Castellani, Bradshaw Jean Paul

Alleen S. MO, Short, City, L. Jerry II and Kansas brief, appellee. BOWMAN, Judge, Circuit

Before Judge, and HEANEY, Senior Circuit HANSEN, Judge. Circuit Judge. HANSEN, Circuit appeals the order Reed the Secre- quest for review and affirmed summary judg- granting court1 district tary’s ‍‌‌​‌‌‌‌‌​​‌‌‌​‌​‌‌​‌‌‌‌‌​​‌‌‌‌​‌‌‌​​‌​​​​‌‌‌‌‌​​‍Hu- denial of benefits. Health and Secretary of ment to the district (Secretary). The man Services Secre- sought judicial review the evidence on court response to the tary’s decision. adverse *3 supported the Secre- a whole as the record summary judg- cross motions for parties’ supplemental deny her to tary’s decision record, the dis- administrative ment on the (SSI) because of benefits security income to summary judgment granted trict court affirm. disability. We claimed Secretary. appeals Reed this decision. the I. BACKGROUND II. DISCUSSION who 293-pound woman is a 5'2" Reed Secretary’s to decision Our review medically-con- obesity, morbid from suffers disability is limited deter deny benefits to diabetes, physical other claimed and trolled suppоrted decision is mining the of the administrative At the time ailments. on the record as a by evidence Although years 29 old. hearing, was she 405(g); Groeper v. whole. See U.S.C. § employed as a previously she has been 1234, Sullivan, Cir. waitress, assistant, helper, counter nurse’s 1991). 'means such “Substantial evidence deboner, she has not worked and chicken mind as a reasonable relevant evidence completed ten 1982. She regularly since con adequate support might accept as September On education. years of formаl ” clusion.' Britton 1987, twenty-seven, she age the at accident. She in an automobile injured was hospital diagnosed and at a examined was did argues first that the AU Reed During the mild strain. having a back subjective com properly consider doctors ex- years, numerous next several by pain Polaski plaints of variety ail- regarding a Reed amined (8th Cir.1984). Heckler, The F.2d 1320 ments. complaints subjective AU that her contends, Reed pain not credible. were applications Reed filed SSI however, evi there is not substantial again 1988. The that in 1987 and bеnefits finding by the AU. support and Reed never dence applications were denied Reed filed her appealed the decisions. then credibility of a determining the When disability benefits application for SSI third subjective pain, allegations of claimant’s 10, 1990, claiming that she was January the AU to consider requires Polaski obesity. and disabled due to diabetes record, prior work observations claimant’s initially again denied application was treating diagnoses by by parties, third requested Reed then on reconsiderаtion. relating examining physicians such hearing. an administrative (1) daily activi- the claimant’s matters as (2) duration, and inten- ties; frequency, hearing, Following the the administrative (3) any precipitating and (AU) July sity pain; denied benefits on judge law factors; (4) dosage, effec- concluding aggravating Reed not dis- by medication; tiveness, although side effects of" found that she abled. The AU (5) functional restrictions. past relevant was unable making at work, capable of voca- F.2d 1322. Reed was adjustments performing tional decision, hearing In the written significаnt jobs exist in numbers subjective thoroughly Reed’s described economy. national complaints. testimony, Based on her diabetes, pain, review the Secre- suffers back excruciat- requested Reed then feet, ing spurs on her and headaches Appeals On March bone tary’s Council. to seven occur- lasting the re- from one hour hours Appeals Council denied Clark, Unit- Honorable Russell G. Senior Missouri. Judge ed District for Western District States thought needed vo- he week, and stated and is times a five to seven ring 278. Dr. Lu- block, Tr. at rehabilitation. cational more than one-half walk unable May rec- minutes, her in or sit zecky, who examined than 10 for more stand suggested ALJ a time. complaints CTS ognized minutes at that her than 45 more examina- sharp contrast of her nerve results but decision however, the ALJ observed of border- testimony, possibility only indicated evidence objective medical Tr. at 308-09. line CTS. complaints of subjective support “ of draw possibility ‘the Because ALJ cannot that an Although aware pain. from the conclusions ing two inconsistent subjective com- a claimant’s disregard prevent administra does not an evidence objective solely because the pain plaints *4 being sup findings from agency’s tive fully support not evidence medical ” evidence,’ see by ported subjec- that correctly stated them, the ALJ Sullivan, 817, 821 958 F.2d Browning v. if there may discounted complaints be tive Cir.1992) 867 Cruse (8th (quoting aas in the evidence inconsistencies (8th Cir.1989)), we conclude F.2d 1184 Polaski, at 1322. F.2d 739 whole. in the substantial evidence that there was record, agree we reviewing the After ALJ’s deci support to hеaring record inconsistent. whole is as a the evidence that com subjective disregard Reed’s sion to for ten worked regularly has not Reed disturb pain. of We will not plaints hearing that at the testified years. She considers, seriously of an ALJ who decision her and cares her house cleans she discredits, a explicitly reasons good but family her help from children, with albeit pain. disabling testimony of claimant’s (Tr.) at 61- Transcript Hearing members. (citing Dixon Browning, 958 F.2d at 821 family shopping and does the also 62. She Cir.1990)). (8th F.2d 238 905 family. help from her cooking, agаin, with reveal ALJ erred the medical records that While next Tr. at 62. Reed contends headaches, migraine effects complaint about the combined failing to consider some to complained argues that she that also impairments. evidence exists She no of her lasting debilitating headaches of vocational physicians to utilize the AU failed day five to seven hours as one hour making from the determination inability to concen- of her week and times a disability status. to her physician testified treating Reed’s tratе. to establish In order with controlled is well her diabetes that is on the proof claim, of the initial burden that Tr. at 30. Conditions medication. oral to she is unable that to show claimant consti- regulated reasonably cannot can Sykes v. work. past her relevant perform v. Heck- disability. Brown of a basis tute (8th If F.2d Cir.1985); see ler, burden, the bur her meet claimant can (1992). Physi- 404.1530(b) also C.F.R. § Secretary to to the proof shifts den the benefits her of also advised cians per capable of claimant prove attempted to assist weight and even losing economy jobs in the national forming other ne- but she weight program, loss in a her medically de her with are consistent Al- weight. gain continued vertheless age, education impairments, terminable no poor eyesight, complains of though she McCoy v. Id. (citing experience. work any exists that documents evidence medical 1138, 1147 Schweiker, Cir. Reed’s com- impairment. significant vision stage, 1982) (en banc)). “At is unsubstantiated pain of back plaint residual the claimant’s must determine and cervical X-rays her lumbar well. is, (RFC), what capaсity functional physicians negative and were spine with physically do even [her] can still range [s]he of motion she had full age, also claimant’s impairments, and alleges 249. Reed also Tr. at spine. experience— education, relevant work syn- tunnel carpal suffers being referred to findings the latter three Lin, Reed (CTS). Dr. who examined drome RFC, factors, opposed however, as vocational out CTS January ruled significantly limitations do exertional McCoy, 683 factor.” a medical which is Id. at 349. the claimant’s RFC. findings as to affect “If the AU’s F.2d at education, experience RFC, and work age, that she proved Reed In this those criteria any combinations fit past relevant perform her was unable Appendix in the Tables contained at 5. The bur decision See AU’s work. reach the AU must then the Part prove shifted to the den then (either or ‘not dis- ‘disabled’ conclusion jobs that perform could that Reed Rule or line abled’) by the relevant directed national number significant in a exist Table.” Id. applicable deciding Reed was economy.2 In rely can pоses is whether subjec disabled, making this the AU found that exclusively guidelines of her the limitations or whether assessment of disability determination tive including pain, vocation- capacity, to also consider functional AU was stated, it is expert testimony. previously al credible. As we credibility de for the AU to make proper suffers Generally, if the claimant F.2d at 349. Thompson, 850 terminations. that limit from nonexertional on the state the reasons The AU should range of the full ability *5 credibility for the determinations. record specific cate the in one of wоrk described adequately stated this the AU Id. In the AU guidelines, gories forth the set specifically found Thé AU his reasons. testimony a voca required to utilize is factors exist credible nonexertional that no Groeper expert. tional Reed’s RFC. See ed that would reduce Cir.1991). In 1235 n. 1 F.2d spe the at 5. Because AU AU’s decision instances, rely cannot exclu the AU those found, supports the cifically and the record a conclu guidelines the to direct sively on impairments finding, that the nonexertional is “disabled” of whether the claimant sion diminish Reed’s RFC significantly do not Thompson v. or “not disabled.” range listed perform a full of activities Instead, (8th Cir.1988). guidelines, the AU was correct in the expert testimony of a vocational must be exclusively guidelines in order rely on the 1235. The Groeper, taken. 932 F.2d at disability status. to determine the exception general to this rule is that (citing at 1235 n. Groeper, 932 F.2d guidelines may exclusively rely on the AU 349-50). There F.2d at Thompson, 850 though are nonexertional im even there expert fore, a vocational the finds, the record pairments if the AU determination. not this was supрorts finding, the that the nonexertional diminish significantly do not ‍‌‌​‌‌‌‌‌​​‌‌‌​‌​‌‌​‌‌‌‌‌​​‌‌‌‌​‌‌‌​​‌​​​​‌‌‌‌‌​​‍a claim According guidelines, to the perform the full the claimant’s RFC to 18 to 44 age range the ant within guidelines. range of activities listed old, grade has a tenth education years who (emphasis F.2d at Thompson, 850 to communi and is át least literate able added) (“If im Thompson’s nonexertional English, previously worked at cate in who significantly affect her residual pairments job and is unable to return to an unskilled capacity functional then the Guidelines perform only prior job, her and who cаn controlling may not be used to sedentary work is deemed to be not dis a conclusion of disabled or not dis direct P, Subpt. App. 20 C.F.R. Part abled. abled.”). words, rely may In the AU other (1992). char 201.24 Because these Rule guidelines on the to direct a conclusion Reed, properly acteristics describe or riot disabled without re either disabled denied benefits. testimony if sorting to vocational Accordingly, the district court. determines that a claimant’s non- we affirm or, words, proceeds assumption ployee that Reed cannot in оther 2. The dissent argument Secretary "implicitly sedentary jobs during that exist in a oral engage significant economy. presently the national that Reed cannot number in conceded” sedentary respectfully disagree. gainful activity as a em- We The answers to these by her. diable Judge, HEANEY, Circuit Senior course, must, supported questions dissenting. evidence. by substantial oral Secretary Counsel Harris, Stone case in this issue the critical argument that obesity is control- Marcia Reed’s is Circuit, other implicitly Eighth thereby In addition Counsel her.3 lablе issue, including en- this presently have addressed cannot circuits that Reed conceded Ninth, Fifth, Sixth, Eleventh Cir- a activity as gainful in substantial gage Lovelace, claimant obesity, male cuits. employee because pounds. In addition weighed 252 requires. 5'11" and the record which concession a hypertension, obesity, he suffered from becomes, there sub- is question thus re- arthritis, The court back trouble. record evidence in stantial determination an individualized manded for obesity? reasonably control can obesity, remedy his fault- аbility to of his AU, howev- no. The clearly answer make the failing to Secretary for ing the answer; he an er, no effort to obtain made necessary findings: I do not could. simply assumed that reality, disregard of know wheth- In like sufficient information have person who is policy of to hold that reflects a continues assumption er this simply obesity has condi- because of the decision disabled Secretary,4 or whether remediable, without per se one AU.5 view of reflects the per- examining medical condition position is clear: This circuit’s possible it might make sonal factors certainly security] agency is The [social disabled particular impossible for or obesity presumptions entitled to obesity. remedy his person fail- that an individual’s or is remediable *6 59; v. Lovelace, see also Scott 813 F.2d no- is “wilful.” The weight lose to, ure (5th Cir. Heckler, 770 F.2d self-indulgent people fat are tion that all 1985). ought anyone than eat more souls who Health & Human Sec’y v. more than the baseless In Johnson to be appears no Cir.1986), the (6th Servs., svelte.... the intolerant prejudice of weighed 314 and 5'9" male claimant was agency the- question for proper ... thoroughly re- The Sixth Circuit pounds. obesity is is not whether claimant’s] [the decisions relat- regulations and viewed remediable, but clinical sense in some obesity: ing to major obesity her is the sole or whether section and, so, introductory disabilities, The- material [in if cause of her Security regulations] the Social 10.10 of reme- obesity reasonably her whether "obesity,” Reed must impairment entitled following listed at oral statement 3. Counsel made the First, requirements. she must mеet argument: meet two height. weight requirement her Because seeing here I think we’re You know what approxi- weight going people height and today are is 5'2" more more ... well, obese, you ought substantially say, pounds, therefore exceeds mately I’m impairment. (as I per a se find nonexertional well as the pounds standard of the listed ever found that. I this court’s regula- don’t think in the 1992 258-pound set forth standard you they is that must P, think what have App. Subpt. tions). Part 20 C.F.R. question is it the next ... controllable? ask Because if Second, satisfy (1990). one of she must II Tаble you of is it get to the which requirements, two of five listed other controllable, yes, upis and the answer is it (a) history pain to this case: relevant patient not to patient, chooses joint any weight-bearing of motion limitation it; distinc- that should be the control me examination) (on associated spine physical or tion. weight- in a x-ray evidence arthritis with (b) hypertension See Lovelace bearing joint spine; with or or Secretary 1987) (the faulted the Circuit Cir. Fifth pressure persistently in excess of blood diastolic obesity pеr finding se remedia policy its for ble). appropriate Hg size with measured 100 mm. P, App. Subpt. Part See 20 C.F.R. cuff. (1990). § 10.10 fact, eligible may, benefits for SSI satisfy impairment. having To by listed a weighed claimant who between obesity- 5'3" female indicates that It is instructive. evi- pounds. submitted 236 and 273 She within the contem- disorders are caused obesity, degenerative spine dis- coverage and that Act’s dence plation of the arthritis, loss, ease, obesity by hypertension, hearing recognizes that ulcers, testimo- expected to result There was no and а rash. its nature can be problems: The court expert. and health ny from a vocational various restrictions that “while a claimant’s usually obesity be asso- Long-term will following a doc- by simply improved can be in the musculo- ciated with disorders losing weight is weight, cardiovascular, tor’s orders to lose peripheral skeletal, taking equivalent to a task which is not systems and vascular, pulmonary following Id. at pills prescription.” a is the or of such disorders the advent Secretary with It remanded to the impairment. Extreme 503-04. major cause of on the imposed directions to take further evidence obesity results restrictions obesity rea- question of additional re- by body weight and the sonably controllable. imposed by disturbances strictions body systems. 846 F.2d 1317 McCall P, Subpt. App. Pt. [20 C.F.R.] Cir.1988), the claimant was 5'2V2" 10.00(B)_ note that We further § pounds. complained of weighed 173 She be- makes no distinction section 10.10 arthritis, back, problems. The and heart simple the result of obesity tween that is remanded further find- Eleventh Circuit overeating obesity that is caused ings: prob- or other physiological disоrder Admittedly, plaintiff’s physicians advised lem. clearly weight, her to lose and the record improve if

indicates her condition would make sense for the ... It would not so, no has been she did but evidence specific include a regulatory scheme to plaintiff has presented suggesting that obesity general regula- if regulation on plan prescribed refused follow entirely negate could ‍‌‌​‌‌‌‌‌​​‌‌‌​‌​‌‌​‌‌‌‌‌​​‌‌‌‌​‌‌‌​​‌​​​​‌‌‌‌‌​​‍tion on treatment physician’s treatment. A recommenda- it, attempt must to construe and we necessarily weight lose regulations they mаke sense.... so prescribed treat- constitute a course of satisfy could sec- any Few if claimants ment, nor does a claimant’s failure to *7 possibility losing tion 10.10 if the mere of change accomplish the recommended con- theoretical, weight, remote or however undertake such treat- stitute a refusal to ineligible.... the claimant could render itself, does obesity, ment. McCall’s Furthermore, this court has stated justify the conclusion that she has physicians’ recommendations to lose consequent refused trеatment nor the de- weight necessarily constitute a do not disability nial of benefits. Further find- treatment, prescribed nor does course ings of fact and conclusions of law are accomplish failure the a claimant’s to Secretary may the deter- before change recommended constitute refus- treat- mine that a claimant has refused treatment.... al to undertake ment. Secretary must show that the ... (citations omitted). Id. at 1319 These deci- disability clearly is treatable. In the ab- well-reasoned, are sions instructive and findings, sence of such we are unable to I persuasive therefore find them in reach- agree government’s post hoc with ing my decision. treatability. rationale based on The law of this circuit on the issue of

Id. at 1112-13. The court remanded to the obesity, together other cir- with that of Secretary light in its consideration cuits, requires us to remand this case to opinion. hearing. for a further At hearing, In Hammock v. 879 F.2d 498 this medical must be (9th Cir.1989), the Ninth Circuit followed obtained to establish whether respect obesity reasonably Lovelace and to in Johnson with a Reed’s is remediable however, is, her income and re- is whether If it disabilities. her other light of provided by maximum exceed the sources length of program,6 the cost of regulations. Security See 20 the Social must be complete it take to it will time (1990). Counsel for the 416.202 C.F.R. § expected to the time is If determined. argu- fact at oral Secretary conceded this months, Reed is then Marcia twelve exceed benefits, If Reed is awarded SSI ment.7 long disability benefits entitled to adjustments in other may there be then If Reed prоgram. complete the to it takes family might she and her public benefits treat- prescribed in participate refuses to so, a decision rightly but this is receive and entitled to bene- ment, will not be then she if appropriate authorities to be made are participation unless the costs fits eligible found for SSI benefits. Reed is govern- and no means beyond personal using Second, the AU erred pay for to are available mental resources to determine that Reed was guidelines treatment. only used The Guidelines can be disabled. remand is that a of the fact view impairments pres- are nonexertional where issue, there obesity required on finds, sup- “if and the record ent im- the AU that are by, errors additional finding, that the nonexertional ports the they not be so that will point out portant claim- do not diminish the an First, considered repeated. capacity per- residual functional ant’s determining wheth- impermissible factor range of listed form the full activities er Reed was disabled: Thompson v. the Guidelines.” irregular work spotty and has a [Reed] (8th Cir.1988) (emphasis earnings. Her work history erratic with added). in this establishes The record dedi- qualities of does not reflect record impairments di- that Reed’s nonexertional regularly engage cation or the desire engage in the full capacity to minish her and her competitive employment. She sedentary employee. of a range of activities $1,140 family public receive assistance by the AU as he recognized This fact was are clear indications month. There not return to that Reed could secondary gain in this case. deboner, clearly seden- as a chicken work Judge, Law Administrative thus occupation.8 Decision of be- tary 2, 1990). Mansfield, (July at 3 there are other Frank C. comes children, light of her Reed, or her hus- jobs that Reed can Whether A vo- impairments. is irrelevant public benefits several nonexertional receive band required to answer eligible expert she is cational question of whether Perhaps a vocational relevant, question.9 receive benefits. What SSI over- tary the AU can determine whether claimant cannot afford If a benefits medicine, apparent bias. his prescribed and can find come treatment or it, way that is disabl- to obtain the condition no ing Lovelace, why Reed cannot work not state The AU does disabling in law. in fact continues to *8 perform other but can chicken deboner as a 59; Dover v. Bow- F.2d at see also 813 poultry defined as A boner is work. 335, (8th Cir.1986); en, Ludden v. 784 F.2d 337 who Cir.1989). one (8th F.2d 1246 [c]uts, pulls cooked scrapes meat from acknowledged error: that the ALJ’s Counsel carcasses, boning 7. using fingers and poultry wings cаr- and drumsticks from Pulls things knife: couple I think in this are a of There along plate, of breast each side casses. Cuts perhaps a little unusual and case breast, knife, using peels using meat from Judge Heaney on one of them at least. has hit scrapes meat from rest of go Pulls and the AU to off on the hands. is the choice of That carcass, Segregates using knife and hands. really of the fact that this is non-medical issue Perhaps separate piles. light into Dis- family we and dark meat that exists on welfare. skin, bones, wastes, gristle, do might chоsen not to wish had cards such [the AU] But, something I don’t think that that is that. into waste containers. (4th against essentially Dictionary Occupational hold ed. that the court should Titles 347 of 1977). the AU.... of whether This error raises remand, ("on Dover, at 784 F.2d 337-38 9. See be remanded to the AU who matter should initially developed assuming does not evidence as the case. I leave it to the Secre- heard ability to do consistently held that though her abilities even find would of one’s not evidence activities is in listed engage diminished, can still she were daily “ability as a sеden- employment gainful competitive and the ‘sometimes basis not. worker, tary perhaps working of environment stressful’ discounting erred Third, Bowen, 867 F.2d v. Easter world.” headaches: complaint of Reed’s omitted). Cir.1989) (citation (8th record in the no There is documentation required. this is See Something more than physicians of complained that [Reed] 638-39 930 F.2d also Ghant days a week of seven out headaches five Cir.1991). (8th no day, a whole lasting for almost impair- any significant physician noted CONCLUSION Sure- ability to concentrate. in her ment bad, werе ly, if her headaches requires of this circuit law case intervention. medical sought have would remanded to the this matter obesity can be Reed’s to determine whether facts are that 3. The AU at Decision part. on her actions reasonable remedied medicines taking prescribed has been that on remand requires law also case regular basis from headaches on for ability whether the AU determine medicines prescribed through 1990. These activity is gainful in substantial engage Fiorinal. Tylenol with codeine include imрair- by her nonexertional diminished docu- reports Moreover, numerous medical so, If must call a vocational ments. he long history Reed has a fact that ment if, light of these determine headaches.10 migraine limitations, there is work nonexertional one reason Fourth, stated that perform. economy that she can the national testimony was claimant’s rejecting the rejects established majority Because hearing. her conduct demeanor law, respectfully I case dissent. explana- gave He no at 4. of AU Decision there was report as to what in his re- demeanor that conduct and about being This credibility. on her

flected knowing he way I have no “sit-and-squirm” test that applying the ‍‌‌​‌‌‌‌‌​​‌‌‌​‌​‌‌​‌‌‌‌‌​​‌‌‌‌​‌‌‌​​‌​​​​‌‌‌‌‌​​‍Sec’y rejected Reinhart v. have we STUEDLE, Appellant, Vickie Servs., F.2d & Human Health (8th Cir.1984), and Cline v. Cir.1991), some or SULLIVAN, M.D., Secretary Louis W. has that this court considered Services, other factor and Human Health Sullivan, 900 Bishop v. inappropriate. Appellee. No. 92-1340. en- Fifth, the AU “[Reed] Appeals, United States Court of household performance in the gages Eighth Circuit. get ready tasks, cooks, her children helps television, some school, watches Sept. Submitted painting as a sewing, some used do Decided March occasionally takes De- hobby, and walks.” *9 He decided these at cision of AU capable per- is indicate Reed

activities This has

forming work. court disabled, economy ability jobs appellant conclusively in the national establish perform”). appellant could we believe vocational Secretary’s satisfy [when burden needed to 246, 257, 261, 265, 10. See Adm.Rec. claimant cannot return concludes that 274, 279, 281, 284, demonstrating previous avail- work]