Carlson v. Astrue

• Citation: 604 F.3d 589
• Decision Date: 10 May 2010
• Docket Number: No. 09-1123.,09-1123.
• Parties: Justan CARLSON, Appellant,v.Michael J. ASTRUE, Commissioner of Social Security, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

604 F.3d 589

Justan CARLSON, Appellant,v.Michael J. ASTRUE, Commissioner of Social Security, Appellee.

No. 09-1123.

United States Court of Appeals,

Eighth Circuit.

Submitted: Oct. 22, 2009.

Filed: May 10, 2010.

COPYRIGHT MATERIAL OMITTED

John August Bowman, argued, Davenport, IA, Michael DePree, on the brief, for appellant.

Mark S. Naggi, argued, Kansas City, MO, Pamela A. Kultgen, on the brief, for appellee.

Before COLLOTON and BENTON, Circuit Judges, and PIERSOL,¹ District Judge.

COLLOTON, Circuit Judge.

Justan Carlson appeals the judgment of the district court ² upholding the Commissioner of Social Security's denial of Carlson's application for supplemental security income. We affirm.

I.

Justan Carlson applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income under Title XVI of that Act id. § 1382, claiming a disability onset date of March 20, 2004. Carlson's disability claims were based on his low body weight and diabetes with neuropathy in his feet.

Carlson has had diabetes mellitus since he was seventeen years old. He was twice admitted to the hospital with diabetic ketoacidosis. During the first hospitalization on May 17, 2003, doctors assessed Carlson as having diabetic ketoacidosis, dehydration, and protracted nausea and vomiting. Approximately nine months later, on February 10, 2004, Carlson was again admitted to the hospital with nausea and vomiting. Carlson was diagnosed with “[d]iabetic ketoacidosis with a mixed metabolic acidosis and a metabolic alkalosis from vomiting.” (A.R.168).

Carlson's medical records also track his low body weight. These records show that Carlson's weight was 134 pounds on April 19, 2004, fell to as low as 123.8 and 123.4 pounds in September and October 2004, respectively, and increased to 136 pounds and 141 pounds in June and July 2005, respectively.

The Social Security Administration (“SSA”) denied Carlson's claims after initial review. After Carlson sought reconsideration, Dr. Lawrence Staples, a state agency medical consultant, reviewed Carlson's case. Dr. Staples considered whether Carlson met Listing 5.08,³ weight loss due to any persisting gastrointestinal disorder, and Listing 9.08, diabetes mellitus. He determined that Carlson did not meet either listing. After this review, the SSA denied Carlson's claims again.

Carlson then filed a request for hearing by an administrative law judge (“ALJ”). After a hearing at which Carlson was represented by counsel, the ALJ determined that Carlson was not entitled to disability insurance benefits or supplemental security income because he was not disabled. With respect to disability insurance benefits, the ALJ concluded alternatively that Carlson was ineligible because he was no longer insured under Title II of the Social Security Act as of his alleged disability onset date. The Appeals Council denied Carlson's request for review, thus making the ALJ's opinion the final decision of the Commissioner.

In determining that Carlson was not disabled, the ALJ used the familiar five-step disability evaluation process outlined in 20 C.F.R. § 416.920. See, e.g., Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir.2004). At steps one and two, the ALJ concluded that Carlson had not engaged in substantial gainful activity since the alleged disability onset date, and that Carlson's diabetes mellitus, peripheral neuropathy, and lower extremity pain were severe impairments. At step three, the ALJ determined that Carlson's impairments did not meet or medically equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Like Dr. Staples, the ALJ explicitly considered Listing 5.08 and Listing 9.08, and concluded that Carlson did not meet or equal those two listings.

After considering Carlson's residual functional capacity (“RFC”) at step four, the ALJ found that it was feasible for Carlson to perform his past job as a telephone solicitor. Finally, at step five, the ALJ found that Carlson could perform jobs that exist in significant numbers in the national economy. Based on these conclusions, the ALJ ultimately determined that Carlson was not disabled.

The district court upheld the ALJ's decision. Carlson now appeals only the denial of his claim for supplemental security income, arguing that the record does not support the ALJ's conclusion that he was not disabled.

II.

We review the district court's decision de novo, and “will affirm if the Commissioner's decision is supported by substantial evidence on the record as a whole.” Davidson v. Astrue, 578 F.3d 838, 841 (8th Cir.2009) (internal quotation omitted); see also 42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance, but enough that a reasonable mind would find it adequate to support the ALJ's decision.” Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.2006). When determining whether substantial evidence exists, we consider evidence that supports the Commissioner's conclusion, along with evidence that detracts from that conclusion. Id. To the extent that Carlson also challenges the ALJ's legal conclusions, we review those determinations de novo. See Brueggemann v. Barnhart, 348 F.3d 689, 692 (8th Cir.2003).

Carlson first argues that the ALJ's decision has no medical support in the record, because no agency medical expert explicitly determined that Carlson's impairments did not equal a listed impairment as required by SSA policy. The determination of whether a claimant meets or equals an impairment described in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, is made at step three of the disability determination process. 20 C.F.R. § 416.920(a)(4)(iii). During this step, the ALJ has the responsibility to decide whether “medical equivalence” has been established. Id. § 416.926(e). An impairment is medically equivalent under the regulations if it is “at least equal in severity and duration to the criteria of any listed impairment.” Id. § 416.926(a). If the ALJ finds that a claimant has an impairment that meets or equals one of the listings, then the claimant will be found disabled. Id. § 416.920(a)(4)(iii).

Here, Carlson argues that SSA policy also requires the ALJ to receive expert evidence on the issue of equivalence. Carlson cites Social Security Ruling 96-6p, which notes that “longstanding policy requires that the judgment of a physician ... designated by the Commissioner on the issue of equivalence on the evidence before the administrative law judge ... must be received into the record as expert opinion evidence and given appropriate weight.” Social Security Ruling (“SSR”) 96-6p, 61 Fed.Reg. 34,466, 1996 WL 374180 (July 2, 1996). The policy also states that when an ALJ determines that equivalency is not established, the requirement to receive expert opinion evidence into the record may be satisfied by a Disability Determination and Transmittal form or other document that reflects the findings of the consultant and is signed by the consultant. Id.

We conclude that the ALJ fulfilled the requirement established by SSR 96-6p. In Jones ex rel. Morris v. Barnhart, 315 F.3d 974 (8th Cir.2003), we concluded that an agency physician necessarily gave the requisite opinion on medical equivalence, albeit not explicitly, where the physician stated that an evaluation of residual functional capacity was required. Because no assessment of RFC would have been necessary if the physician had found that the claimant's condition was equivalent to a listed impairment, we reasoned that the physician implicitly rejected a determination of equivalence. Id. at 978 n. 2.

Jones compels rejection of Carlson's first argument, because Carlson's records contain a similar determination signed by a state medical consultant. The record shows that Dr. Staples served as a state medical consultant who evaluated Carlson. Like the physician in Jones, Dr. Staples concluded that an RFC assessment was necessary for Carlson, and thus implied that Carlson did not equal Listing 5.08. The ALJ's consideration of Dr. Staples's signed RFC assessment satisfied the obligation to receive an expert opinion on equivalence.

The ALJ's ultimate decision that Carlson did not meet or equal Listing 5.08 is supported by substantial evidence. The claimant has the burden of proving that his impairment meets or equals a listing. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir.2004). “To meet a listing, an impairment must meet all of the listing's specified criteria.” Id. Listing 5.08 covers “[w]eight loss due to any persisting gastrointestinal disorder.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 5.08. The introduction to Listing 5.08 clarifies that “[w]hen the primary disorder of the digestive tract has been established ... the resultant interference with nutrition will be considered under the criteria in 5.08. This will apply whether the weight loss is due to primary or secondary disorders of malabsorption, malassimilation or obstruction.” Id. § 5.00(B).

At Carlson's height of 74 inches, Listing 5.08 requires a weight less than or equal to 128 pounds, or a weight less than or equal to 136 pounds if the claimant has uncontrolled diabetes. Id. § 5.08. In this case, the ALJ concluded that Carlson failed to meet Listing 5.08. While the ALJ's opinion is unclear on the issue of the weight requirement, the ALJ found that Carlson did not meet the listing because “there has been no primary disorder of the digestive tract established, nor is there evidence of a secondary disorder ... as required under 5.00B.” (A.R.20).

The record contains substantial evidence to support the ALJ's conclusion on this point. Dr. Staples found that Carlson failed to meet Listing 5.08 because there was no evidence that Carlson suffered from a gastrointestinal disorder. No other physician suggested that Carlson had such a disorder. Carlson consistently presented to doctors with a soft, nontender abdomen with normal bowel sounds. Consistent with...