Jenkins v. Apfel

• Decision Date: 16 September 1999
• Docket Number: No. 99-1270WM,99-1270WM
• Citation: 196 F.3d 922
• Parties: (8th Cir. 1999) Darrell E. Jenkins, Appellant, v. Kenneth S. Apfel, Commissioner of Social Security, Appellee. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 922

196 F.3d 922 (8th Cir. 1999)

Darrell E. Jenkins, Appellant, v. Kenneth S. Apfel, Commissioner of Social Security, Appellee.

No. 99-1270WM

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: September 16, 1999

Filed: November 10, 1999

On Appeal from the United States District Court for the Western District of Missouri.

Before RICHARD S. ARNOLD, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

RICHARD S. ARNOLD, Circuit Judge.

Darrell E. Jenkins appeals the denial of his application for social-security disability benefits. He argues that the Administrative Law Judge (ALJ) based the denial on insubstantial evidence and improperly evaluated his allegations of subjective pain. The District Court upheld the denial. We reverse.

I.

Mr. Jenkins is a 55-year-old man with a high-school education. From 1978 to 1995, he ran a dairy farm. He has no work experience outside farming. Mr. Jenkins claims that he became disabled on January 1, 1995, because of severe pain and weakness in his upper extremities. On March 13, 1995, he filed an application for disability benefits. His claim was denied initially and on reconsideration. He filed a request for a hearing, which was held on August 8, 1996.

The ALJ decided that Mr. Jenkins was not entitled to disability benefits. The ALJ found that Mr. Jenkins had a severe impairment but not one that qualified him for benefits under the impairments listed in the regulations. The ALJ found that Mr. Jenkins was unable to perform his past relevant work. The ALJ decided, however, that given his residual functional capacity, Mr. Jenkins would be able to do light and sedentary work. The ALJ did not believe Mr. Jenkins's testimony that his severe pain limited his capacity to do such work. The ALJ found Mr. Jenkins's testimony inconsistent, and credited the assessment of a non-treating physician who determined that Mr. Jenkins had a greater capacity to lift and grasp than he claimed. The ALJ believed this assessment because he found it consistent with the reports of Mr. Jenkins's treating physicians. Based on this assessment and the testimony of a vocational expert, the ALJ concluded that Mr. Jenkins was not entitled to disability benefits. Mr. Jenkins appealed the ALJ's decision.

The Appeals Council considered additional medical evidence not before the ALJ. After the hearing, on November 18, 1996, Mr. Jenkins had begun regular treatments with Dr. Janet Schwartzenberg, a rheumatologist. In deciding Mr. Jenkins's request for review, the Appeals Council considered a Medical Source Statement from Dr. Schwartzenberg and her reports from these post-hearing treatments. The Appeals Council, however, determined that this evidence did not provide a basis for altering the ALJ's decision. The Appeals Council denied Mr. Jenkins's request for review.

II.

We review the decision of the ALJ to determine whether his findings are supported by substantial evidence on the record as a whole. Pfitzner v. Apfel, 169 F.3d 566, 568 (8th Cir. 1999). In addition to evidence before the ALJ, the record includes evidence that was submitted after the hearing and considered by the Appeals Council in denying review. Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994). Evaluating such evidence requires us to determine how the ALJ would have weighed the newly submitted evidence if it had been presented at the original hearing. Id. In this case, the new evidence considered by the Appeals Council provides substantial support for Mr. Jenkins's arguments on appeal: first, that the ALJ's residual-functional-capacity finding was not supported by substantial evidence, and second, that the ALJ incorrectly evaluated the claims of disabling pain.

A.

The medical reports submitted after the hearing are evidence that Mr. Jenkins has less residual functional capacity than the ALJ concluded. Adopting the assessment of a non-treating physician, the ALJ concluded that Mr. Jenkins:

"can lift and/or carry 10 pounds frequently and 20 pounds occasionally; can stand and/or walk about six hours . . . can sit about six hours . . . has limited ability to push and/or pull; can never climb ladders, ropes, or scaffolding; and has limited overhead reaching" (R. at 36).

By contrast, Dr. Schwartzenberg, a treating physician, concluded that Mr. Jenkins could lift or carry only five pounds frequently (not ten), that he could carry or lift no more than five pounds even occasionally (not twenty), and that he could stand or walk just five hours (not six) and not more than one hour continuously (R. at 175-76). In summarizing Mr. Jenkins's impaired capacities, Dr. Schwartzenberg stated that the problem with his shoulders "severely limits his ability to do anything" (R. at 177).

Because Dr. Schwartzenberg's assessment conflicts with the assessment of the non-treating physician, we must decide how the ALJ would have weighed them relatively. Though the non-treating physician had never seen Mr. Jenkins, the ALJ credited his assessment because it was consistent with the general diagnoses and observations of the treating physicians (R. at 35). The treating physicians' diagnoses and observations, however, did not include specific assessments of Mr. Jenkins's capacity to lift, carry, sit, and stand.¹ The non-treating physician's specific judgements of Mr. Jenkins's capacities were inferences from other physicians' much more general findings. By contrast, Dr. Schwartzenberg saw and treated Mr. Jenkins four times before making her assessment. She is the only treating physician who has assessed and quantified the claimant's capacity to lift, carry, sit, and stand. Because her assessment was not available at the hearing, the ALJ had no choice but to rely on the assessment of a non-treating physician.

If he had possessed the new evidence, however, we think the ALJ would have adopted Dr. Schwartzenberg's assessment of Mr. Jenkins's residual functional capacity rather than the non-treating physician's assessment. A treating physician's opinion should not ordinarily be disregarded and is entitled to substantial weight. Ghant v. Bowen, 930 F.2d 633, 639 (8th Cir. 1991). By contrast, "[t]he opinion of a consulting physician who examines a claimant once or not at all does not generally constitute substantial evidence." Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998). There is no other evidence in the record to support the ALJ's residual-functional-capacity finding besides the non-treating physician's assessment. This assessment alone cannot be considered substantial evidence in the face of the conflicting assessment of a treating physician. Henderson v. Sullivan, 930 F.2d 19, 21 (8th Cir. 1991). Moreover, Dr. Schwartzenberg's reports undermine the ALJ's sole stated reason for crediting the non-treating physician's assessment, its consistency with the findings of the treating physicians (R. at 35). If the ALJ had possessed Dr. Schwartzenberg's assessment, he could not have found this consistency.

Accordingly, we hold that the residual-functional-capacity assessment adopted by the ALJ was not supported by substantial evidence. Since the vocational expert's testimony was based upon this assessment, we also hold that his testimony was not substantial evidence that Mr. Jenkins could perform other substantial gainful activity. Ness v. Sullivan, 904 F.2d 432, 436 (8th Cir. 1990).

B.

In addition, the new evidence supports the credibility of Mr. Jenkins's testimony that he suffers from disabling pain. The ALJ adopted the finding of the non-treating physician that Mr. Jenkins's complaints of disabling pain were "inconsistent" with objective medical findings (R. at 35). The ALJ considered the absence of objective medical support for Mr. Jenkins's claims of pain an "important factor" in discrediting his testimony (ibid.). The non-treating physician's conclusion, however, is again in conflict with the assessment of a treating physician, Dr. Schwartzenberg.

Dr. Schwartzenberg observed "severe spasm of the musculature . . . secondary to pain" when she moved the claimant's shoulders beyond 15 degrees (R. at 187), "muscle spasm and twitching that was obviously unintentional in nature" after movement of the triceps (ibid.), and "tenderness and muscle spasm in the thoracic area in the paraspinal musculature" (R. at 182). In light of these personal experiences with the patient, her examinations, and her physical findings,...