Page v. Astrue

• Decision Date: 26 April 2007
• Docket Number: No. 06-2139.,06-2139.
• Citation: 484 F.3d 1040
• Parties: Marilyn J. PAGE, Plaintiff-Appellant, v. Michael J. ASTRUE,<SMALL><SUP>1</SUP></SMALL> Commissioner, Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

484 F.3d 1040

Marilyn J. PAGE, Plaintiff-Appellant, v. Michael J. ASTRUE,¹ Commissioner, Social Security Administration, Defendant-Appellee.

No. 06-2139.

United States Court of Appeals, Eighth Circuit.

Submitted: February 16, 2007.

Filed: April 26, 2007.

David P. Rawls, Little Rock, AR, for appellant.

Ruben Montemayor, Dallas, TX, for appellee.

Before LOKEN, Chief Judge, GRUENDER, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Marilyn J. Page appeals the district court's² affirmance of the Commissioner's denial of her application for disability insurance benefits and supplemental security income. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Page, born on November 24, 1958, has a general equivalency diploma with some vocational training in billing. She worked as a forklift operator, products packer, products assembly worker, factory "garment girl," and personal care aide for the mentally ill.

Page stopped working in January 1999, to care for her father. She became sick while assisting him, and has not worked since. In December 2000, she applied for disability insurance and supplemental security income benefits, alleging inability to work due to a blood clot in the lungs. She later alleged that pain from her neck caused weakness in her left side. After her applications were denied initially and on reconsideration, she requested a hearing.

On July 23, 2002, at the first hearing, Page claimed she had high blood pressure, depression, and allergies. Her hypertension caused her breathing problems, chest pain, dizziness, and headaches. She also alleged auditory and visual hallucinations. She took medication to control her hypertension and depression.

Page also testified about problems with her left shoulder, on which surgery was performed about three weeks before the hearing. She claimed that on a scale of one to ten, "I would rate it [the pain] about a six now." Page had no problems using the right side of her body. She testified that she could occasionally lift five or ten pounds, and frequently lift a jug of milk.

The ALJ found that although Page had a "severe" impairment or combination of impairments, her "allegations regarding her limitations are not totally credible," and she was not disabled. On review, the Appeals Council remanded to the ALJ to further evaluate her subjective complaints, residual functional capacity, and to obtain additional evidence about Page's impairment.

In December 2003, at the second hearing, Page testified to the same general ailments, again emphasizing that her left shoulder caused her problems. On a scale of one to ten, she rated the pain at a six. She acknowledged, however, "It don't hurt constantly like it use to but it do hurt." Page said that she could lift ten pounds.

Page had no mental treatment between the first and second hearings. Asked whether any mental issues persisted, she answered: "Not as bad. I feel — I take the medication only if, you know, I need it. . . . I don't, you know, hear or see anything but I do be depressed."

The ALJ again found Page's testimony "regarding the nature and severity of her impairments and her ability to work is not totally credible." He evaluated her claim using the five-step sequential analysis in the social security regulations. See 20 C.F.R. §§ 404.1520, 416.920. First, Page had not engaged in substantial gainful activity since the onset of the alleged disability. Second, although the ALJ noted that many of Page's impairments had been successfully treated, he found a combination of physical impairments that were severe. The ALJ determined, however, that her mental problems were non-severe because they "would result in at most" only a mild limitation in her ability to perform activities of daily living.

Third, the ALJ found "no evidence to show the existence of any impairment that meets the criteria of any of the listed impairments." Fourth, he determined that Page was precluded from performing past relevant work. The ALJ noted, however, that she retained the residual functional capacity to occasionally lift or carry 20 pounds, and frequently lift or carry 10 pounds. He determined that she could stand and/or walk six to eight hours a workday, and sit six to eight hours a workday. According to the ALJ, Page could engage in frequent, although not constant, reaching with her upper extremities.

At the fifth step, the ALJ found that based on Page's age, education, work experience, and residual functional capacity, "she is able to make an adjustment to other work that exists in significant numbers in the local, regional, and/or national economy." The ALJ concluded that Page was not disabled. The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. The district court affirmed. Page appeals.

II.

"Our role on review is to determine whether the Commissioner's findings are supported by substantial evidence in the record as a whole." Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir.1999), citing Clark v. Apfel, 141 F.3d 1253, 1255 (8th Cir. 1998). "Substantial evidence is relevant evidence which a reasonable mind would accept as adequate to support the Commissioner's conclusion." Haggard, 175 F.3d at 594. "The fact that some evidence may support a conclusion opposite from that reached by the Commissioner does not alone permit our reversal of the Commissioner's decision." Kelley v. Barnhart, 372 F.3d 958, 961 (8th Cir.2004); Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir.2007); Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir.2006).

Page first argues that the "residual functional capacity assessed by the Commissioner with regard to Appellant's capacity to reach, lift and carry with the upper extremities is not based upon substantial evidence in the record as a whole." It is "the ALJ's responsibility to determine [claimant's] RFC based on all the relevant evidence, including medical records, observations of treating physicians and others, and [claimant's] own description of her limitations." Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir.1995); 20 C.F.R. §§ 404.1545-46, 416.945-46.

The RFC assessed by the ALJ is supported by substantial evidence. In May 2001, Page went to a rehab clinic, complaining of neck and shoulder pain. She was treated with oral medications, steroid dose packs, and epidural steroid injection therapy. By July, a rehab physician reported that Page's neck pain was resolved, although some shoulder symptoms continued.

In June 2002, Page went to an orthopaedic center, complaining of left-arm pain. Dr. Charles A. Clark diagnosed impingement of the left shoulder. In July, he performed surgery. In August, he concluded that Page's shoulder "has excellent ROM, very little pain." In October, he noted that although Page had "tenderness anterolaterally," she also had "excellent ROM, good strength."

In March 2003, Page complained again about left-shoulder soreness and pain. Dr. Clark provided steroid injection therapy and oral medication. He recommended "a series of stretching and strengthening exercises."

In December, asked about her shoulder at the second hearing, Page stated: "It don't hurt constantly like it use to but it do hurt." Page also stated that she was right-handed, mostly working with her right hand. The state-agency doctor estimated that Page was capable of lifting and carrying up to 50 pounds occasionally and 25 pounds frequently. That doctor estimated her ability to stand or walk as six hours in an eight-hour workday, with an unlimited ability to push and pull.

The ALJ considered the medical evidence, Page's subjective complaints, and other "demeanor evidence." Assessing her individual ability to do work-related activities, the ALJ concluded that Page could engage in frequent (although not constant) reaching with her upper extremities. See Harris v. Barnhart, 356 F.3d 926, 929 (8th Cir.2004) ("The RFC is a function-by-function assessment of an individual's ability to do work-related activities based upon all of the relevant evidence"), citing Depover v. Barnhart, 349 F.3d 563, 565 (8th Cir.2003). Based on the medical evidence, the state-agency opinions, Page's subjective complaints, and her testimony that "it don't hurt constantly like it used to," the RFC determined by the ALJ is supported by substantial evidence.

Page next argues that substantial evidence does not support the ALJ's finding that her psychological limitations are non-severe. Step two of the regulations involves a determination, based on the medical evidence, whether the claimant has an impairment or combination of impairments that significantly limits the claimant's ability to perform basic work activities. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). "The sequential evaluation process may be terminated at step two only when the claimant's impairment or combination of impairments would have no more than a minimal impact on her ability to work." Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.2001), citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir.1996). The Commissioner counters that Page's mental impairment was non-severe, and her encounters with doctors were "linked primarily to obtain benefits, rather than to obtain medical treatment." See Shannon v. Chater, 54 F.3d 484, 486 (8th Cir.1995).

Page did not allege mental impairment in her disability application. At the first administrative hearing, she claimed, "I hear things and I see things that's not there." In January 2002, Dr. Elaine Wilson conducted a neurologic examination to assess the claim of hallucinations. Dr. Wilson observed no neurological abnormality to explain Page's claim.

In March, Page had a mental evaluation. Tracy A. Harris, a primary therapist, noted that Page was "self-referred," "never received mental health counseling or psychiatric treatment in the past," and "is seeking disability and has been denied in the past." Harris evaluated Page as logical and coherent, cooperative,...