Harvey v. Barnhart

• Decision Date: 24 May 2004
• Docket Number: No. 03-2578.,03-2578.
• Citation: 368 F.3d 1013
• Parties: James HARVEY, Plaintiff — Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant — Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

368 F.3d 1013

James HARVEY, Plaintiff — Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant — Appellee.

No. 03-2578.

United States Court of Appeals, Eighth Circuit.

Submitted: January 16, 2004.

Filed: May 24, 2004.

James H. Green, argued, Kansas City, MO, for appellant.

Mark S. Naggi, Special Assistant U.S. Attorney, argued, Kansas City, MO (Todd P. Graves and Frank V. Smith III, on the brief), for appellee.

Before MELLOY, BRIGHT, and HANSEN, Circuit Judges.

MELLOY, Circuit Judge.

James Harvey appeals the district court's¹ order affirming the Commissioner's determination he retained the residual functional capacity to perform his past relevant work and, therefore, was not disabled. We affirm.

An administrative law judge ("ALJ") determined that Harvey suffered from various mental and physical impairments that, collectively, were severe. However, the ALJ determined that these impairments neither met nor were equivalent to a listed impairment. The ALJ also determined that Harvey and Harvey's wife were not credible and that Harvey exaggerated his symptoms as well as his physical and mental limitations. Reviewing records of objective medical tests, reports from treating physicians, testimony from consulting physicians and a psychiatrist (only some of whom personally examined Harvey), testimony from a vocational expert, and testimony regarding Harvey's work history, daily activities and limitations, the ALJ determined that Harvey retained the residual functional capacity to perform his past relevant work as a security guard. The Social Security Appeals Council denied further review, and the ALJ's opinion became the Commissioner's final agency action. The district court affirmed. Harvey appeals.

We review the record as a whole and must affirm the Commissioner's findings if supported by substantial evidence. See Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir.2000) (standard of review). In our review, we must consider evidence that is contrary to, as well as evidence that supports, the Commissioner's findings. Id. Here, substantial evidence in the record as a whole clearly supports the Commissioner's credibility and residual functional capacity determinations.

A consulting psychiatrist who examined but did not treat Harvey stated, inter alia, "symptom magnification syndrome"; "[q]uery secondary gain and/or malingering"; "[i]t is difficult to predict this individual's abilities to perform work-related functions based upon objective findings"; and "I doubt that he would be able to remain at work and remain productive during the course of an eight hour day." This opinion, which clearly supports the Commissioner's credibility determination, was equivocal at best regarding Harvey's residual functional capacity. Nevertheless, Harvey points to this opinion as evidence that the record shows he does not possess the residual functional capacity to perform his past work as a security guard. This and other evidence that Harvey cites in support of his position is largely based on his own subjective complaints.

Harvey's medical records showed, however, that his symptoms were basically controlled or controllable. His medical records showed some limitation in ability to lift and use his right hand, but did not contain any objective evidence of limitations that were as severe as those Harvey claimed in his application for benefits. The medical records contained no objective basis for a finding that Harvey had memory problems and contained only limited instances where Harvey claimed to have memory difficulties. Harvey did not mention memory loss or other mental health impairments on his application for benefits.

Harvey's treating physicians viewed him as not credible. They refused his requests for powerful prescription pain killers, noted repeatedly that his complaints were out of proportion with any identifiable medical causes, and recorded opinions such as "[patient] reports pain out of proportion to physical findings. Will not refill percocet, instruct [patient] to use Tylenol as needed"; "[patient] states that his Ultram is not relieving his pain. [Patient] had an x-ray in February that found only mild degenerative changes.... [patient] is a poor historian, as he changes his story frequently and repeatedly asks the same questions. [Patient] admits to past crack, cocaine, and PCP use and claims it has affected his memory"; "atypical presentation, but [patient's] history is so difficult to obtain with confidence"; and "Probable...