Owen v. Astrue

• Decision Date: 29 December 2008
• Docket Number: No. 08-1172.,08-1172.
• Citation: 551 F.3d 792
• Parties: Steven T. OWEN, Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

551 F.3d 792

Steven T. OWEN, Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Appellee.

No. 08-1172.

United States Court of Appeals, Eighth Circuit.

Submitted: September 24, 2008.

Filed: December 29, 2008.

Thad James Murphy, argued, Michael DePree, on the brief, Davenport, IA, for appellant.

Kevin B. Murphy, AUSA, argued, Christopher Hagen, AUSA, Des Moines, IA and Kristi A. Schmidt, Social Security Admin., on the brief, Kansas City, MO, for appellee.

Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.

SMITH, Circuit Judge.

Steven Owen appeals the district court's¹ affirmance of the administrative law judge's (ALJ) denial of Owen's applications for disability insurance benefits (DIB) and supplemental security income (SSI) for the period of July 25, 1999, to February 14, 2002. Owen contends that the ALJ incorrectly weighed the medical opinions of his treating and consultative physicians. He also argues that the ALJ erred in omitting drowsiness from the ALJ's residual functional capacity (RFC) finding. We affirm the judgment of the district court.

I. Background

Owen has sought treatment for lower back pain since at least 1986. Between October 1998 and February 2002, Owen regularly visited Dr. Steven Paulsrud, who prescribed painkillers and muscle relaxants and administered steroid injections for Owen's condition. An MRI of Owen's lower back performed in November 1998 revealed "[m]ild discogenic changes at the L2-3 level with no focal disc herniation." In December 1998, Dr. Paulsrud noted that although the MRI revealed no significant pathology, Owen was experiencing back pain with radiation into his right leg.

Owen attended an initial physical therapy evaluation in January 1999, but he failed to attend his subsequent physical therapy appointments. In March 1999, Dr. Paulsrud observed that Owen was suffering from "mild" lower back pain but was "doing very well" and had good strength and range of motion. Dr. Paulsrud also encouraged Owen to quit smoking and modify his diet, but Dr. Paulsrud noted the following month that Owen would not follow regular exercise or dietary plans. In July 1999, less than three weeks prior to the alleged disability onset date, Dr. Paulsrud observed that Owen's back pain was intermittent. Shortly after the alleged disability onset date, Dr. Paulsrud noted that Owen had increased his activity and, despite his continuing lower back pain, was "doing better."

Owen visited Dr. Rhea Allen, who had treated him for a hand injury in July 1998, for a consultative examination in March 2000. Dr. Allen noted that Owen suffered from lower back pain but handled his daily living activities independently. Based on a physical examination and a review of various treatment notes and the November 1998 MRI, Dr. Allen concluded that Owen could (1) lift ten pounds frequently and 20 pounds occasionally; (2) carry 15 pounds occasionally; (3) stand for an entire workday, given normal breaks; (4) walk for up to four hours each workday; (5) sit in a chair with a backrest without limitation, given normal breaks; and (6) stoop, climb, kneel, and crawl occasionally. Although Dr. Allen recommended that Owen avoid work requiring highly repetitive, forceful gripping and grasping, she stated that he could perform light manufacturing work.

In May 2000, Dr. J.D. Wilson, a medical consultant for the Iowa Disability Determination Services Bureau, completed an RFC assessment form for Owen. Dr. Wilson reached similar conclusions regarding Owen's physical limitations as had Dr. Allen and explained that he had given "great weight" to Dr. Allen's opinions and recommendation.

When Owen returned to Dr. Paulsrud in May 2000, Dr. Paulsrud encouraged Owen "to try to get back to work." Dr. Paulsrud completed an RFC assessment form in which he indicated that Owen's condition would likely cause him to be absent from work about four days a month. Dr. Paulsrud referred Owen to physical therapy. Owen attended the initial physical therapy evaluation but then cancelled six consecutive physical therapy appointments.

Dr. Robert Knox completed an RFC assessment form in June 2000, finding Owen's alleged limitations to be inconsistent with his activities of daily living. Dr. Knox indicated that Owen could (1) lift 25 pounds frequently and 50 pounds occasionally; (2) stand and walk for about six hours each workday, given normal breaks; (3) sit for about six hours each workday, given normal breaks; and (4) push and pull without limitation.

Dr. Paulsrud completed an RFC assessment form in August 2000, concluding that Owen (1) could lift ten pounds occasionally; (2) could sit or stand for 60 minutes before changing position; (3) could stoop, crouch, and climb stairs occasionally; (4) had limited ability to reach overhead, push, and pull; (5) should never climb ladders; (6) should avoid working with machinery, at extreme temperatures, and at heights; and (7) would likely be absent from work more than three times a month because of his condition.

In January 2001, Dr. Paulsrud completed an RFC assessment form in which he indicated that Owen (1) could lift ten pounds frequently and occasionally; (2) could stand and walk for about four hours each workday, given normal breaks; (3) could sit for about four hours each workday, given normal breaks; (4) could climb stairs occasionally; (5) could never twist or climb ladders; (6) could sit or stand for 30 minutes before changing position; and (7) must walk around for five minutes every half hour.

An MRI of Owen's lower back performed in October 2001 revealed "[m]ild L2-3 degenerative disc disease without significant interval change" and "[m]inimal left posterolateral L4-5 disc protrusion." Dr. Paulsrud completed a fourth RFC assessment form that month, finding that Owen experienced sedation and drowsiness for one to two hours as side effects of his medication and that Owen could work no more than four hours a day "to start." In November 2001, Owen received an epidural steroid injection and was instructed to limit his activity for two to three days and to avoid heavy lifting.

On February 7, 2002, one week before the end of Owen's alleged disability period, Owen informed Dr. Paulsrud that he had recently fallen on ice and was experiencing neck and leg pain. On February 17, 2002, three days after the end of the alleged disability period, Owen visited the emergency room with severe back pain. At the end of February 2002, Dr. Paulsrud noted that Owen was unable to stay in one position for more than 45 minutes.

In a letter to Owen's attorney dated March 13, 2002, Dr. Paulsrud stated that Owen's two MRIs revealed "degenerative disk disease caus[ing] a bone-to-bone contact in [Owen's] lumbar spine." Dr. Paulsrud also explained that Owen would initially need to limit any work to four hours a day and that it is difficult for individuals with Owen's condition to find employment unless they are retrained for clerical work. In June 2002, Dr. Wilson completed another RFC assessment form and stated that the "liberal recommendations" contained in Dr. Paulsrud's March 13 letter were not supported by Owen's medical record and that Owen's complaints were not supported by the October 2001 MRI.

At Owen's hearing before the ALJ on October 29, 2001, a vocational expert responded to a number of hypothetical questions based primarily on Dr. Allen's and Dr. Paulsrud's assessments of Owen's physical limitations. First, the vocational expert testified that the limitations set forth by Dr. Allen following her March 2000 consultative examination would preclude performance of Owen's previous duties as a construction worker and foundry worker but would allow him to perform the duties of a parking attendant, rental clerk, and cashier II (clerical). Second, the vocational expert testified that Owen could perform the duties of a parking attendant, arcade attendant, and survey worker if Owen (1) could lift ten pounds frequently and occasionally; (2) could stand and walk for up to four hours each day; (3) could sit for up to four hours each day with changing of position every 60 minutes; (4) could not twist or use ladders (5) could stoop, crouch, work overhead, push, and pull infrequently; (6) could climb steps occasionally; (7) could not be exposed to extreme temperatures; and (8) could not work around machinery or at heights. These limitations were derived from Dr. Paulsrud's August 2000 and January 2001 RFC assessment forms.

The vocational expert also testified, however, that if the second hypothetical were amended so that Owen had to change position every 30 minutes and walk around for five minutes after 30 minutes of sitting — limitations expressed in Dr. Paulsrud's January 2001 RFC assessment form — then he would be unable to perform any unskilled jobs. Furthermore, based on limitations set forth in Dr. Paulsrud's May 2000, August 2000, and October 2001 RFC assessment forms, the vocational expert testified that Owen would be unable to perform any job if he had to miss more than three days of work each month or could work only four hours each day. Finally, the vocational expert testified that Owen would be unable to perform any job if he were unable to stay awake, a limitation apparently based on Owen's testimony at the hearing that his medication "puts [him] to sleep" and on Dr. Paulsrud's statement in his October 2001 RFC assessment form that Owen experienced sedation and drowsiness as side effects of his medication.

In his December 23, 2004, decision concluding that Owen was not disabled from July 25, 1999, to February 14, 2002, the ALJ followed the five-step disability analysis of 20 C.F.R. § § 404.1520, 416.920. At steps one through four, the ALJ found that (1) Owen was not engaged in substantial gainful activity, (2) his impairments were severe, (3) his impairments did not meet or equal a listed impairment, and (4) he lacked the RFC to perform his previous duties as a construction worker and...