Hepp v. Astrue

• Decision Date: 07 January 2008
• Docket Number: No. 06-4103.,06-4103.
• Citation: 511 F.3d 798
• Parties: Cloyd HEPP, Plaintiff-Appellant, Lilia S. Hepp, Widow of Cloyd Hepp, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

511 F.3d 798

Cloyd HEPP, Plaintiff-Appellant Lilia S. Hepp, Widow of Cloyd Hepp, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.

No. 06-4103.

United States Court of Appeals, Eighth Circuit.

Submitted: September 24, 2007.

Filed: January 7, 2008.

Alan J. Nussbaum, argued, Little Rock, AR, for appellant.

Katauna King, Special AUSA, argued, Social Security Administration, Tim Griffin, U.S. Attorney, Stacey E. McCord, AUSA and Tina M. Waddell, Regional Chief Counsel, SSA, Dallas, TX, for appellee.

Before COLLOTON, BEAM and GRUENDER, Circuit Judges.

BEAM, Circuit Judge, concurs in the result.

GRUENDER, Circuit Judge.

This is an appeal of the district court's¹ order affirming a final decision of the Commissioner of Social Security denying Cloyd Hepp's² application for disability insurance benefits under Title II of the Social Security Act. See 42 U.S.C. §§ 416(i), 423. Hepp argues that he was denied due process because he did not get an opportunity to cross-examine properly one of the medical examiners. Hepp also claims that the administrative law judge's ("ALJ") decision denying benefits was unsupported by substantial evidence because the ALJ's decision contained inconsistencies and improperly weighed the medical evidence. We affirm.

I. BACKGROUND

Hepp alleges that he has been disabled since January 6, 1997, due to spinal injuries and a torn rotator cuff in the right shoulder. He was covered for Title II disability benefits until March 31, 2002.

Hepp was sixty-three years old at the time of the administrative decision. He began experiencing lower back pain while serving in the Navy as a parachute rigger. Hepp retired from the Navy in 1990, with a ten percent disability rating. After his Navy service, Hepp worked seasonally in Alaska as a crab steamer and a fish processor. As a crab steamer, he would lift large containers of cooked crab. As a fish processor, Hepp received fish from boats and placed them in twenty, thirty, or one hundred pound totes. He then lifted the twenty and thirty pound totes and placed them on a conveyor belt. The hundred pound totes were transported with a forklift. Both jobs required standing, stooping and bending for twelve to sixteen hours a day. In January 1997, the processing plant laid Hepp off.

On August 31, 1999, Hepp filed an application for disability insurance benefits. Prior to this filing, his last medical treatment from a physician for his back or shoulder occurred in 1995. On October 15, 1999, the ALJ sent Hepp to Raymond West, M.D., for a consultative examination. Hepp reported that he used aspirin and Motrin for pain relief, and Dr. West claimed that "[o]bjectively, there is little to account for [Hepp's] back distress." Dr. West concluded that Hepp could sit for at least two-hour periods, could stand or walk for at least thirty minute periods, and could alternate these activities occasionally in the workplace during an average workday. Also, Hepp could occasionally, if not frequently, lift and carry twenty to thirty pounds for 200 to 300 feet and could bend, squat, kneel or crawl occasionally for short periods in the average workday.

Throughout 2001, Hepp received a series of medical examinations at the Veterans Hospital. Radiology and bone density tests indicated diffuse demineralization, degenerative changes through the spine, and osteoporosis. Hepp was prescribed Vioxx for pain relief. On May 3, 2001, Hepp had a hearing before an ALJ. The ALJ denied benefits to Hepp, and the Commissioner's Appeals Council refused to grant Hepp's request for review. Hepp sought review in federal court. In January 2003, the district court remanded the case back to the agency because the ALJ's findings were not supported by substantial evidence. One of the district court's chief concerns was that neither the ALJ nor Dr. West had reviewed the 2001 radiology and bone density tests, which required analysis by a qualified physician.

On May 21, 2003, the ALJ conducted a second hearing. Hepp testified that he could carry twenty to thirty pounds, though not very far. He also indicated that he takes Motrin for pain and Fosamax for osteoporosis; it appeared he no longer took Vioxx. He helped around the house by vacuuming, mopping, sweeping, washing dishes, folding cloths, cooking, driving and mowing the lawn with a push mower. Hepp stated that when he drives for over an hour, he must pull off the road and walk around because of the pain. A vocational expert characterized Hepp's previous employment as a parachute rigger as medium and skilled work, his job as a crab steamer as heavy and unskilled work, and his job as a fish processor as medium and unskilled work.³ The ALJ then requested that Hepp receive an orthopedic consultative examination.

In July 2003, William Blankenship, M.D., conducted a consultative examination of Hepp. Although Hepp was seventy-three inches in height throughout his time in the Navy, Dr. Blankenship's nurse recorded that Hepp was sixty-nine and a half inches tall. Hepp admitted that it has been "quite a while" since his last treatment and that he took Motrin for pain. Based on x-rays, Dr. Blankenship reported that Hepp had a compression fracture at T7 that had healed with a fifty percent loss of height. After testing Hepp's range of motion, Dr. Blankenship concluded that Hepp had no limitations with regards to lifting, carrying, standing, walking or sitting. Dr. Blankenship's report was submitted to the ALJ.

Hepp disagreed with Dr. Blankenship's conclusions and requested the right to cross-examine him. The ALJ agreed to schedule the cross-examination by telephone. Hepp objected to telephone cross-examination and requested in-person cross-examination, but the ALJ denied the request. Hepp also wanted to demonstrate that Dr. Blankenship was biased against social security disability claimants by presenting depositions, hearing transcripts, and medical reports in other cases involving Dr. Blankenship to discredit and impeach his testimony. However, the ALJ limited the scope of the cross-examination to Dr. Blankenship's report concerning Hepp's medical condition and prohibited any questions related to any other cases or patients.

The ALJ conducted a third hearing on January 14, 2004, during which Hepp cross-examined Dr. Blankenship by telephone. The doctor stated that he was not certain if he had received any bone density reports, but a bone scan which revealed dextroscoliosis only meant that there existed a curvature of the spine, which would not necessarily cause pain. Dr. Blankenship also indicated that a loss of height does not necessarily indicate any functional limitations. Upon further questioning, Dr. Blankenship testified that the x-rays did not substantiate Hepp's claim of numbness in his right arm and leg. He also denied manipulating patients when conducting range of motion tests. Finally, Hepp testified that his examination with Dr. Blankenship only lasted about fifteen minutes.

On April 29, 2004, the ALJ issued a decision denying disability benefits. The ALJ employed the five-step process outlined in 20 C.F.R. § 416.920 to determine whether Hepp was disabled.⁴ The ALJ determined that Hepp had not performed gainful work since the alleged disability onset date and that he suffers from severe impairments which are not listed. The ALJ then employed the Polaski factors to evaluate the credibility of Hepp's subjective claims of pain. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). The ALJ found: (1) an absence of objective medical findings to support the allegations of disabling pain; (2) an ability to remain active in the performance of household activities; (3) a lack of consistent medical care; (4) a long-term use of over-the-counter medication (Motrin) for effective pain relief; and (5) a claim by Hepp that he could lift fifty pounds occasionally. Based on these findings, the ALJ determined that Hepp's subjective claims of pain lacked credibility.

At step four, the ALJ concluded that Hepp retained the residual functional capacity for medium work activity. The ALJ's opinion then contained a paragraph that was inconsistent with the remaining decision: "[t]he claimant has demonstrated that he is unable to perform his past relevant work. Therefore, [at step five,] the burden of proof shifts to the Commissioner of Social Security to establish that there are substantial numbers of jobs existing in the national economy that the claimant can perform with his particular limitations." However, later in the opinion and consistent with the earlier finding that Hepp could perform medium work activity at step four, the ALJ held that Hepp could perform his past relevant work as a fish processor as generally performed in the national economy. Consequently, the ALJ concluded that Hepp was not disabled under the Social Security Act.

After the Appeals Council denied review, Hepp again sought judicial review, arguing that the ALJ's decision lacked substantial evidence and that the ALJ violated his due process rights by restricting cross-examination to Dr. Blankenship's medical report of Hepp. Hepp also moved to remand the case to the ALJ in order to have new evidence considered. The new evidence consisted of a MRI report dated January 27, 2006, and a letter from Jon H. Dodson, M.D., dated April 10, 2006. Hepp then supplemented his motion to remand, claiming that the ALJ's refusal to allow in-person cross-examination of Dr. Blankenship violated his due process rights. The district court denied the motion. The court determined that the additional evidence was immaterial since it did not address Hepp's condition during the time period for which he was covered for Title II disability benefits, the information in the letter could have been obtained as early as 2003, good cause did not exist for Hepp's failure to submit the evidence in the letter before the record closed, and Hepp was not denied due process. The district...