Buckner v. Astrue

• Citation: 646 F.3d 549,169 Soc.Sec.Rep.Serv. 12
• Decision Date: 19 July 2011
• Docket Number: No. 10–1524.,10–1524.
• Parties: Brian BUCKNER, Appellant,v.Michael J. ASTRUE, Commissioner of Social Security, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

646 F.3d 549

169 Soc.Sec.Rep.Serv. 12

Brian BUCKNER, Appellant,

v.Michael J. ASTRUE, Commissioner of Social Security, Appellee.

No. 10–1524.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 13, 2011.Filed: July 19, 2011.

Jonathan B. Pitts, Pitts Law Office, PC, Springfield, MO, argued, for appellant.Kristin M. Bunnell, Spec. Asst. U.S. Atty., Kansas City, MO, argued (Beth Phillips, U.S. Atty., Kristi A. Schmidt, Chief Counsel, Region VII, Soc. Sec. Admin., Kansas City, MO, of counsel, on the brief), for appellee.Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.SMITH, Circuit Judge.

Brian Buckner appeals the district court's ¹ judgment upholding the Commissioner of Social Security's (“Commissioner”) denial of his application for disability insurance and supplemental security income (SSI) benefits, under Titles II and XVI of the Social Security Act (SSA). Buckner argues that the administrative law judge (ALJ) (1) erroneously determined that Buckner's mental impairments—specifically, his depression and anxiety—were not severe; (2) inadequately evaluated the credibility of Buckner and Buckner's girlfriend; and (3) based his decision on an improperly phrased hypothetical question to the vocational expert (VE). For the following reasons, we affirm.

I. Background

In Buckner's application for disability and SSI benefits, he alleged a disability beginning on August 29, 2005, at age 33. In his application, he stated that he could not work full time due to hypertension, sleep apnea, restless leg syndrome, headaches, anxiety, emotional problems, and gastroesophageal reflux disease (GERD). Buckner has a high school diploma but no further education. He previously worked as a warehouse worker, a milker on a dairy farm, a nursing assistant, and a taxi cab driver.

A. Medical History

Buckner made several visits to different medical providers between April 2005 and October 2007. These visits were not directly related to his application for disability and SSI benefits, but they were included in the administrative record. The conditions documented by these providers are summarized below.

1. Hypertension

Buckner began receiving medication for hypertension in April 2005. At that time, his blood pressure measured 199/121 and 180/101. He reported smoking 1.5 packs of cigarettes per day. On May 27, 2005, Buckner sought medical treatment and reported that he had not taken his hypertension medicine for two days, and he reported smoking two packs of cigarettes per day. His blood pressure measured 175/123, 154/108, and 160/105. He was instructed to take his hypertension medication.

With some exceptions, Buckner's hypertension generally improved over the course of 17 measurements in the next two years. Starting with a high of 180/132 in September 2005, Buckner's regular blood pressure readings steadily dropped, reaching a low of 122/83 in October 2006. After that point, his blood pressure briefly spiked but ultimately returned to 150/90 in October 2007.

2. Chest Pain

At Buckner's May 2005 examination, a chest x-ray revealed “[q]uestionable mild cardiomegaly,” ² which the doctor indicated “may be an artifact of the portable [x-ray] technique and the patient's body habitus.”

Buckner reported a history of chest pain at his September 1, 2005 examination. An x-ray revealed “minimal old pulmonary granulomatous disease” ³ and a “borderline cardiac size.” An electrocardiogram (EKG) revealed sinus bradycardia ⁴ but was otherwise normal.

On September 12, 2005, Buckner underwent a myocardial perfusion rest and stress test involving a “two-day treadmill exam.” An EKG indicated a normal resting heart rate. With stress, Buckner had no chest pain. The examination revealed “[n]o evidence of myocardial scarring or of stress induced myocardial ischemia,” ⁵ “[m]ild inferior hypokinesis,” ⁶ and a normal “left ventricular ejection fraction” of 55 percent.

From September 2005 to October 2006, all of Buckner's cardiovascular examinations were normal. On October 10, 2007, Buckner went to the emergency room, complaining of intermittent chest pain. By the time he was examined, he reported no pain. Two days later, he had a normal cardiovascular examination.

3. Other Physical Conditions

Buckner suffered from a variety of other physical maladies, varying in their duration and severity. For example, Buckner's medical records with an advanced practice nurse indicated an ongoing problem with obesity and frequent complaints of headaches, nasal congestion, coughing, sneezing, restless leg syndrome, and tooth pain. Nevertheless, all of Buckner's visits to the advanced practice nurse revealed normal musculoskeletal, motor/sensory, strength, and sensation examinations.

The advanced practice nurse also diagnosed Buckner with GERD on May 27, 2005, for which she prescribed Zantac. In September 2005, Buckner reported that the Zantac helped “a lot,” and in October 2006, he reported that his GERD was “great” while on Zantac.

On February 20, 2006, Buckner went to the emergency room, complaining of neck and back pain due to a motor-vehicle accident. An x-ray of his cervical spine revealed no fractures or subluxation ⁷ but could not exclude “[d]isc protrusion.” An x-ray of his lumbar spine revealed “a questionable fracture” of the L2 vertebra, but the report stated it was “more likely ... an artifact of overlapping soft tissues.”

4. Depression and Anxiety

At an examination on September 1, 2005, Buckner reported having anger problems, and the advanced practice nurse diagnosed him with depression. He had normal psychological examinations on September 6 and 12, 2005. On September 15, 2005, he returned to the advanced practice nurse and reported that his medication, Zoloft, was helping with his depression. The advanced practice nurse indicated that Buckner's psychological examination was normal.

On September 29, 2005, Buckner told the advanced practice nurse that the Zoloft was not helping with his depression. Nevertheless, the advanced practice nurse indicated that Buckner's psychological examination was normal. During visits in October, November, and December 2005 and March 2006, the advanced practice nurse documented normal psychological examinations. In April 2006, Buckner again reported to the advanced practice nurse that Zoloft was not helping, but Buckner's psychological examination was normal. The advanced practice nurse documented normal psychological examinations for Buckner in October and November 2006.

B. Administrative History

1. Function Report

On October 27, 2005, in connection with his August 29, 2005 application for disability and SSI benefits, Buckner completed a function report indicating how his mental and physical conditions limited his daily activities and abilities. He indicated that he could care for his son and girlfriend. He also stated that he could take care of his personal needs and grooming but would “sometimes” need reminders from his girlfriend for grooming and taking medication.

Buckner reported that he could clean and do “some yard work,” although he noted that he would have to “sit down about every 10 minutes” because of chest pain. He stated that he went outside almost every day but usually could not drive because of his medication. He indicated that he could go shopping and manage his own money. He listed watching television, playing on the computer, and playing sports as hobbies, although he stated that he could not play sports “very often” because of pain in his legs (specifically, his restless leg syndrome). He also stated that he went to church on a regular basis.

In describing his abilities, Buckner claimed that his conditions affected his ability to lift, stand, climb stairs, see, remember, concentrate, and get along with others. He stated that he could walk 100 to 400 feet without resting but would require 20 to 30 minutes rest before resuming. He reported having panic attacks.

2. Dr. Sutton's Psychological Report

On January 18, 2006, Geoffrey Sutton, Ph.D., a licensed psychologist, completed a “Psychiatric Review Technique” form. Dr. Sutton confirmed that Buckner's medical records showed that Buckner was suffering from depression and anxiety, concluding that “the allegations for mental disorders are partially credible.” He concluded that Buckner's mental impairments did not impair Buckner's activities of daily living; mildly limited his ability to maintain social functioning; mildly limited his ability to maintain concentration, persistence, and pace; and did not result in any episodes of decompensation. Ultimately, Dr. Sutton concluded that Buckner's mental impairments were not severe.

3. Disability Questionnaire

Buckner completed a questionnaire on December 12, 2007, in which he stated that an ordinary day involves watching television, walking outside for a little while, and resting. He stated that he can stand no longer than 30 minutes at a time, walk short distances, lift light weights, and use his hands and arms. He also indicated that he can sit if he frequently changes positions. Finally, he reported being able to mow “small areas” of grass “with breaks” and to cook and wash dishes only if he needs to and “with breaks.”

4. Dr. Hwang's Physical Evaluation

At the request of Buckner's attorney, Yung Hwang, M.D., examined Buckner on December 28, 2007. Dr. Hwang's report noted Buckner's history of hypertension, heart problems, restless leg syndrome, and headaches, which Dr. Hwang stated could be managed effectively with Buckner's prescribed medications. He noted that Buckner had mild depression and anxiety not being treated with medication. He explained that Buckner “is mentally clear” and “has been evaluated for depression and anxiety but comprehends very well and understands with no difficulty and is capable of tending to his affairs with no assistance.”

Dr. Hwang also noted Buckner's obesity and his lower back pain, and he reported that Buckner had full range of motion in his upper extremities (shoulders,...