Cox v. Barnhart, 06-2226.

• Decision Date: 22 December 2006
• Docket Number: No. 06-2226.,06-2226.
• Citation: 471 F.3d 902
• Parties: Phyllis COX, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 902

471 F.3d 902

Phyllis COX, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant-Appellee.

No. 06-2226.

United States Court of Appeals, Eighth Circuit.

Submitted: November 16, 2006.

Filed: December 22, 2006.

F. Gregory Wallace, argued, Buies Creek, North Carolina (Anthony W. Bartels, on the brief), for appellant.

Shalyn Timmons, argued, Social Security Administration, Dallas, Texas (Bud Cummins, Stacey E. McCord, Tina M. Waddell, and Mary F. Lin, on the brief), for appellee.

Before MURPHY, ARNOLD, and BENTON, Circuit Judges.

MURPHY, Circuit Judge.

Phyllis Cox applied for disability insurance benefits alleging she could not work because of back pain, carpal tunnel syndrome and other ailments. After a second remand from the district court under sentence four of 42 U.S.C. § 405(g), an administrative law judge (ALJ) determined that Cox could perform sedentary work that is available in many positions both locally and nationally and concluded that she was not disabled. The district court¹ ruled in favor of the Commissioner of Social Security upholding the denial of benefits and dismissed the case with prejudice. Cox appeals, arguing there was insufficient evidence to support the conclusion that she was not disabled within the meaning of the Social Security Act and that the ALJ's credibility determinations were not supported by the weight of the evidence. We affirm.

Cox was born in 1952, and she has a high school education. She worked as an assembly worker and a material handler, but stopped working on October 13, 1995 after a back injury sustained at work. Her insurance benefits expired on December 31, 1995. In early 1995 Cox was diagnosed with chronic obstructive pulmonary disease (COPD), a disease characterized by gradual loss of lung function. Around this time, she was treated for high blood pressure, carpal tunnel syndrome, and back pain. She also took medication for depression and anxiety.

Starting in December 1994, Cox's primary doctor was family practitioner Dr. Sanders McKee. He diagnosed Cox's COPD and ordered a CT scan after she complained of continued back pain. Although the scan was interpreted as normal, Dr. McKee recommended physical therapy for her continued back pain in January 1995 and referred her to a pain clinic. Cox first saw Dr. Mark Hackbarth, who specializes in pain management, in March 1995. He examined her back and hips and found minimal tenderness although Cox reported her pain level as being between seven and ten on a scale of ten. Dr. Hackbarth also reviewed the CT scan and found it to be unremarkable.

Throughout 1995 Dr. Hackbarth noted improvement in Cox's back pain and range of motion. In May 1996 he released Cox from his treatment and stated in a letter to her primary physician that he ordered a functional capacity evaluation for her with a return to work shortly afterward depending upon the results of the test. No functional capacity evaluation was completed, however, and Cox did not return to work.

In 1998 Cox returned to the care of Dr. Hackbarth, and he wrote a letter stating that Cox's condition had not changed dramatically since he released her from his care in 1996. He stated that she was unable to engage in prolonged walking, sitting, or standing and that she was never free from pain. In 2000 Dr. Rebecca Barrett-Tuck, a neurosurgeon, had Cox undergo an MRI and found a small disc rupture which she determined had been present in 1995.

Cox filed an application for disability insurance benefits on June 18, 1997, claiming she had been disabled since October 13, 1995 because of back problems and bilateral carpal tunnel syndrome. She also alleged weakness, pain, fatigue and difficulty in breathing. She estimated that she could stand and walk for two and one half to three hours and sit for two hours before she had to rest. The Social Security Administration denied her claim initially and again on reconsideration. A hearing was held before an ALJ on February 20, 1998, at which she testified that she did not drive often because of fatigue and numbness in her legs and hands and that she was only able to do limited household work, such as cooking with a crock pot or loading the dishwasher.

The ALJ found that Cox did not have a severe impairment and denied her claim. Cox requested review, which was denied by the Appeals Council. She then sought judicial review in the United States District Court for the Eastern District of Arkansas. The district court reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g), finding that the ALJ had erred by concluding that Cox's condition was not severe.

In response to the district court's remand, a second hearing was held before an ALJ on June 7, 2001. The ALJ issued another decision two months later concluding that Cox could perform light work and was not disabled. The Appeals Council denied Cox's review, and she appealed to the district court which again reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g). The court concluded that the ALJ had erred in determining that she was able to do light work because Dr. Hackbarth's 1998 opinion found her symptoms could be exacerbated by prolonged sitting or standing. The court determined that "[t]he best evidence in the record regarding Plaintiff's functional abilities during the relevant time period is from Mark Hackbarth, M.D" and that the ALJ had not given proper weight to Dr. Hackbarth's 1998 letter. It directed the ALJ to employ a vocational expert to testify about whether Cox could perform her past job or other jobs with restrictions.

Following the district court's second remand to the Commissioner, an additional hearing was held before an ALJ on April 28, 2004. Vocational expert Vance Sales testified at the hearing and the ALJ asked Sales to respond to a hypothetical question: Could a woman the same age as Cox, with the same education and work experience, with the ability to sit for six hours and stand and walk for two hours of an average workday, and with the ability to lift and carry ten pounds at a time, be able to work at her past job or at any other employment position? Sales testified that a person with these limitations could not perform the jobs Cox had worked at previously, but that she could work as a sedentary assembler (2300 jobs in the state; 156,000 jobs nationally) or as a sedentary cashier (5800 jobs in the state; 584,000 jobs nationally).

The ALJ then engaged in the five step analysis outlined in 20 C.F.R. § 404.1520. First he found that Cox had not engaged in substantial gainful activity since her back accident on October 13, 1995. See 20 C.F.R. § 416.1520(a)(4)(i) (2004). Next the ALJ found Cox met the requirements to qualify as disabled under the Social Security regulations as of the date she last worked and continued to meet those requirements through the last day she was insured. See 20 C.F.R. § 416.1520(a)(4)(ii) (2004). At the third step, the ALJ found the evidence did not support the existence of an impairment listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P, which would have automatically qualified Cox as disabled. See 20 C.F.R. § 416.1520(a)(4)(iii) (2004).

Because the ALJ did not find that Cox met the requirements of a listed impediment, he proceeded to the fourth and fifth steps to evaluate if she would be able to return to work and measured her residual functional capacity. The ALJ identified a number of inconsistencies between Cox's claims and the medical evidence. He noted that her CT scan had disclosed no significant impairment regarding her lumbar spine, that Dr. Hackbarth had recorded notes on several dates when her pain and range of motion had improved during the insured period, that her hypertension had appeared to be related to her sodium intake and thus could be altered with behavior modifications, that Dr. Hackbarth had acknowledged that Cox could return to work in his 1996 checkup, that she had not alleged mental disabilities in her initial application, that there was no evidence that she had been treated by a mental health professional, that earlier testimony had showed she was able to drive, launder clothes and visit friends, and that she had smoked more than a pack of cigarettes per day during the insured period. Based on these inconsistencies, the ALJ found that Cox's "subjective allegations were not borne out by the overall record nor found to be fully credible."

The ALJ determined Cox could lift up to ten pounds, sit for six hours of an eight hour day, and stand or walk for two hours of an eight hour day. Relying on Sales's testimony, the ALJ determined that Cox could not perform her past work, see 20 C.F.R. § 416.1520(a)(4)(iv) (2004), and that her impairment would not prevent her from...