Royce Glen McDADE, Plaintiff-Appellant v. Michael J. ASTRUE, Commissioner, Social Security Administration, Defendant-Appellee.
No. 12-3091
United States Court of Appeals, Eighth Circuit
July 29, 2013
Submitted: Feb. 14, 2013
723 F.3d 994
III.
The district court is affirmed.
Brock C. Cima, Assistant Regional Counsel, argued, Dallаs, TX (Melinda Newman, Special Assistant United States Attorney, on the brief), for appellee.
Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Royce Glen McDade applied for disability insurance benefits and supplemental security income in February 2008. McDade now appeals the district court‘s1 decision upholding the Social Security Commissioner‘s denial of his application. We affirm.
I.
McDade applied for disability and disability insurance benefits under Title II of the Social Security Act,
At the hearing, McDade provided testimony regarding his various medical issues, including respiratory distress; heart problems; diabetes; obesity; arthritis; depression; anxiety; and severe pain in his neck, back, and pelvis. In particular, McDade dеscribed disabling pain in his back, neck, and pelvis. McDade‘s mother also testified, noting that she has to assist McDade with some daily activities, such as laundry and some housework, and that McDade lies down for several hours each day and sometimes just stares into space. The ALJ also reviewed McDade‘s extensive history of medical treatment. Applying the familiar five-step sequential evaluation for disability,2 the ALJ determined that McDade has a severe impairment and is unable to perform his past relevant work, but that he is able to perform the full range of sedentary work and is not disabled. Subsequently, the Appeals Council denied McDade‘s request for review. The district court affirmed the denial of benefits.
On appeal, McDade alleges that the ALJ erred by (1) improperly evaluating McDade‘s subjective complaints of pain, (2) failing to give adequate weight to the opinions of Drs. Clary, Hurst, and Tucker, (3) failing to eliсit necessary testimony from the vocational expert at Step 5, and (4) failing to properly apply the Adult Listing of Impairments at Step 3.
II.
We review the district court‘s decision upholding the denial of social securi
A.
First, McDade argues the ALJ erred by not giving sufficient weight to his subjective complaints of pain. When analyzing a claimant‘s subjective complaints of pain, the ALJ must consider the five factors from Polaski v. Heckler: (1) the claimant‘s daily activities; (2) the duration, frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions. See id. at 1322; see also
Here, the ALJ cited the Polaski factors in his decision and actually сredited many of McDade‘s subjective complaints of pain. To the extent the ALJ discredited or discounted McDade‘s assertion that his pain was completely disabling, we find the ALJ provided good reasons supported by substantial evidence. The ALJ noted McDade was not unduly restricted in his daily activities, which included the ability to perform some cooking, take care of his dogs, use a computer, drive with a neck brace, and shop for groceries with the use of an electric cart. The ALJ also noted that McDade did not take any long-term narcotic medication for pain relief, despite his allegations of chronic disabling pain. Finally, the ALJ concluded, based on several aspects of McDade‘s medical record, that McDade‘s “description of the severity of the pain has been so extreme as to appear implausible.” See Admin. R. 27 (citing evidence of only minor lumbar spine abnormalities, the absence of irregularities in McDade‘s cervical spine, and a neurologist‘s report that McDade suffered from “some genuine weakness and some not so genuine weakness“). Because the ALJ properly applied Polaski and provided valid reasons for discounting McDade аnd his mother‘s testimony, we find the ALJ did not err in discounting the most severe subjective complaints of pain. See Perks, 687 F.3d at 1093 (affirming ALJ‘s decision to discount claimant‘s reports of disabling back pain where claimant‘s normal activities included “meal preparation, mowing his yard on a riding mower, shopping for food, and maintaining thе family‘s finances“).
B.
McDade also argues the ALJ gave inadequate weight to the medical opinions of Drs. Clary, Hurst, and Tucker. We disagree and find the ALJ properly weighed these opinions.
1.
Dr. Patrick Clary is a chiropractor who began treating McDade after a car accident in 2007. Although a chiropractor is not an acceptable medical source for determining disability, see
We agree with McDade that Dr. Clary‘s evidence, including his reports of McDade‘s cervical and lumbar spine permanent impairment ratings, could be considered by the ALJ in assessing the severity of McDade‘s impairments. Indeed, the ALJ did consider Dr. Clаry‘s submissions. See Admin. R. 25. But we do not agree with McDade‘s argument that the ALJ improperly weighed Dr. Clary‘s evidence. The ALJ determined that McDade‘s back pain was a severe impairment that limited him to sedentary work, suggesting that Dr. Clary‘s evidence was at least partially credited. And based on the record before us, thе ALJ‘s conclusion regarding McDade‘s back pain appears consistent with the particular impairment ratings Dr. Clary assigned (25-28% permanent impairment rating for cervical spine, and 17.7-20.4% permanent impairment rating for lumbar spine). See id. at 335-36. McDade‘s own letter to the court explains that “[f]or individuals who wоrk in sedentary jobs, there may be no decline in their work ability although their overall functioning is decreased.... [A] 30% impairment rating does not correspond to a 30% reduction in work capability.” Appellant‘s 28(j) Letter, 4, Feb. 2, 2013. Thus, Dr. Clary‘s impairment ratings, standing alone, provide little insight into how these
2.
Dr. Katharine Hurst is a general practitioner who began treating McDade in 1999. McDade visited Dr. Hurst nearly 20 times at the Charitable Christian Medical Clinic. In June 2007, Dr. Hurst noted that McDade was significantly disabled and needed at least temporary disability benefits because he lacked insurance. Admin. R. 23-24. In September 2009, Dr. Hurst wrote a letter stating McDade‘s medical issues “make it very difficult for him to maintain gainful employment,” and requesting that he recеive some form of assistance, such as Medicare, since McDade‘s medical issues exceeded the scope of the clinic‘s ability. Id. at 625-27. Dr. Hurst stated that she did not think McDade could work an eight-hour day in welding or truck driving. Id. at 626. McDade argues the ALJ, who largely discounted Dr. Hurst‘s conclusions, id. at 27, did not give apprоpriate weight to Dr. Hurst‘s evidence and opinions.
After careful review, we find the ALJ‘s decision to discount many of Dr. Hurst‘s conclusions was appropriate. First, the ALJ correctly noted that Dr. Hurst appeared to rely largely on McDade‘s own subjective reports of symptoms and limitations. See Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir.2007) (“ALJ was entitled tо give less weight to [physician‘s] opinion, because it was based largely on [claimant‘s] subjective complaints rather than on objective medical evidence.“). Second, Dr. Hurst‘s opinion regarding McDade‘s difficulty maintaining employ
3.
Dr. Paul Tucker is a neurologist who saw McDade on sеveral occasions between 2008 and 2010. The ALJ considered evidence from several of McDade‘s visits with Dr. Tucker in 2008. See Admin. R. 26. Additionally, McDade submitted a letter from Dr. Tucker written in early 2010, after the ALJ‘s hearing, to the Appeals Council. See Add. to Br. of App. 51. The parties disagree about whether Dr. Tucker‘s post-hеaring letter was “new” and “material,” and thus required to be considered by the Appeals Council. See Perks v. Astrue, 687 F.3d 1086, 1093 (8th Cir.2012) (“[T]he Appeals Council must evaluate the entire record, including any new and material evidence submitted to it after the ALJ‘s decision.” (citing
When the Appeals Council denies review of an ALJ‘s decision after reviewing new evidence, “we do not evaluate the Appeals Council‘s decision to deny review, but rather we determine whether the record as a whole, including the new evidence, supports the ALJ‘s determination.” Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir.2000). Here, Dr. Tucker‘s letter indicated that McDade had “significant problems,” “did not seem to feign illness,” and “was trying to do the best he could, and he was limited.” Add. to Br. of App. 51. This is entirely consistent with the ALJ‘s determination in this case, which credited many of McDаde‘s health issues and found that he was limited to sedentary work. And Dr. Tucker‘s conclusory statement that McDade “had become unable to work on March 14th, 2009,” id., is not entitled to deference because it is a judgment reserved for the Commissioner. See Ellis, 392 F.3d at 994. Thus, we conclude the ALJ‘s determination was supported by the record as a whole, including the post-hearing evidence from Dr. Tucker.
C.
McDade also argues the ALJ erred by using the Medical-Vocational Guidelines (the “Grids“), instead of the testimony of a vocational expert, to determine whether there was substantial gainful employment McDade could perform. At MсDade‘s hearing, the ALJ only asked the vocational expert to characterize McDade‘s past relevant work. The ALJ later applied the Grids to determine whether McDade was disabled. McDade argues that because he suffers from a nonexertional impairment,
We disagree. Although McDade is generally correct, Baker goes on to state that “when a claimant‘s subjective complaints of pain are explicitly discredited for legally sufficient reasons articulated by the ALJ, the Secretary‘s burden at the fifth step may be met by use of the [Grids].” Id. at 894-95 (internal quotation and alteration omittеd). Here, as discussed in detail above, the ALJ discredited McDade‘s allegations of completely disabling pain for legally sufficient reasons, including his not unduly restricted daily activities, the absence of long-term narcotic pain medication, and inconsistencies with other aspects of his medical rеcord. Therefore, we conclude the ALJ properly resorted to the Grids at Step 5. See Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir.2005) (allowing reliance on the Grids where ALJ properly discredited claimant‘s complaints of pain and found claimant could perform full range of sedentary activity).
D.
Lastly, McDade argues the ALJ failed to properly apply the Adult Listing of Impairments. See
The Government argues McDade waived this argument by failing to raise it in the district court. Although we also have concerns about whether McDade properly preserved this argument, assuming, without deciding, that this issue was not waived, we do not find error in the ALJ‘s conclusion at Step 3. The claimant bears the burden of demonstrating that his impairment matches all the specified criteria of a listing. See Steed v. Astrue, 524 F.3d 872, 874 n. 3 (8th Cir.2008) (“Through step four of [disability] analysis, the claimant has the burden of showing that she is disabled.“). Here, although McDade presents some evidence that he satisfies Listing 1.04, such as evidence of spinal stenosis, he provides no evidence that his spinal injury resulted in compromise of the nerve root or the spinal cord, which is a requirement for all conditions within Listing 1.04. See
III.
Accordingly, we affirm.