Thomas v. Sullivan, 90-1936EM

• Decision Date: 12 March 1991
• Docket Number: No. 90-1936EM,90-1936EM
• Parties: , Unempl.Ins.Rep. CCH 15933A James THOMAS, Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 255

928 F.2d 255

32 Soc.Sec.Rep.Ser. 611, Unempl.Ins.Rep. CCH 15933A

James THOMAS, Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Appellee.

No. 90-1936EM.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 8, 1991.

Decided March 12, 1991.

George Luberda, St. Louis, Mo., for appellant.

Wesley Wedemeyer, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before ARNOLD, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

James Thomas appeals the district court's ¹ order affirming the denial of his application for disability insurance benefits. He also appeals the district court's refusal to remand the case to the Secretary for the introduction and consideration of additional evidence. Lastly, Thomas appeals the district court's refusal to permit him to conduct discovery in order that he might determine whether his due process rights have been violated. We affirm the district court in all respects.

I. BACKGROUND

Thomas was born in April 1946 and completed ten years of education. His most recent work involved transporting patients to and from hospitals and other facilities; he performed this work from October 1971 until March 1985. During the course of this employment, Thomas was involved in at least two work-related automobile accidents. These accidents, combined with the constant lifting of patients, contributed to a severe back pain that ultimately caused Thomas to quit his job.

On May 6, 1986, Thomas filed for disability and supplemental security income benefits. After an administrative denial, Thomas obtained a hearing before an ALJ. In addition to listening to Thomas' testimony, the ALJ reviewed reports submitted by Doctors Herman Russell, Ronald Hoffmann and Edward Eyerman and a vocational counselor, Walter Schmiedeskamp. These reports indicated, and the ALJ found, that Thomas suffered from sclerosis of his L3 vertebrae, hypertension, and obesity. R. at 18. Doctors Hoffmann and Eyerman disagreed whether the sclerotic body was cancerous. It was generally agreed that Thomas' maladies restricted his ability to lift objects, and the ALJ found that Thomas could not lift more than twenty pounds. Id.

The ALJ determined that Thomas' afflictions did not equal a listed impairment or combination of impairments. He further found that, even though Thomas was unable to return to his prior job, he still possessed the skills and residual functional capacity to perform "semi-skilled work activities of light work." Id.

The Appeals Council denied Thomas' request for review of the ALJ's decision on June 18, 1987. R. at 8. Prior to being notified of this denial, Thomas sent a letter to the Appeals Council, complaining about Dr. Eyerman's report. Attached to this letter was a report from Dr. William Juergens in which Dr. Juergens confirmed the existence of the sclerotic body and indicated that Thomas' refusal to undergo a biopsy was "unfortunate" because, if the growth were cancerous, "treatment would be effective in relieving [Thomas'] pain and perhaps significantly improve his lifestyle and longevity." R. at 6. ² Dr. Juergens went on to opine that Thomas was "totally disabled" by the back pain. Id. The Appeals Council reaffirmed its decision to deny benefits, R. at 3, and Thomas filed suit in federal court. The district court adopted the magistrate's recommendation that the case be remanded to the Secretary for further findings. Thomas v. Bowen, No. 87-1561C(3) (E.D.Mo. July 14, 1988).

A new ALJ was appointed; in addition to the reports admitted at the first hearing, this ALJ reviewed reports from Doctors Dean Hageman and Mary Joseph. Doctor Hageman's report discussed the results of a Magnetic Resonance Imaging ("MRI") he performed on Thomas' spine, which indicated that the sclerotic body was most likely a "benign process" and not cancerous. R. at 324. Doctor Joseph's report consisted of a two-page form provided by an insurance company. On this form, Dr. Joseph indicated that Thomas' cardiac condition imposed only a slight limitation on his activities and his diabetes was not severe, but that his activities were severely limited due to his back injury. R. at 322. She described Thomas as unable to perform either his regular or any other occupation, yet indicated that rehabilitation, vocational counseling and/or retraining would be recommended. R. at 323.

Thomas testified that he suffered from pain in his joints, high blood pressure, an ulcer and diabetes, and that he was taking medication for the first three of these conditions. He further testified that the pain medication, Tylenol III, was ineffective. R. at 271. Walking or standing for more than fifteen minutes would cause pain in his back, feet, and knees, R. at 274-75, and sitting for extended periods caused pain in these same areas. R. at 277-78. The most comfortable position for Thomas was lying down. R. at 280. Finally, Thomas testified that Dr. Joseph was treating him for his arthritis, high blood pressure and diabetes, and that he went elsewhere for treatment on his back. R. at 264. However, Dr. Hageman's report was not given to the doctors treating Thomas' spine; instead, it was given to Dr. Joseph. R. at 269.

Doctor Ricky George, a vocational expert, also testified. In response to a hypothetical supposing a man with Thomas' work experience, unable to lift more than ten pounds, and having to shift from sitting to standing position every thirty to sixty minutes, Dr. George testified that there were jobs in the national economy that such a person could perform. R. at 293-96. When asked whether any employment existed for an individual who, due to pain, had to spend most of the day lying down, Dr. George testified that no such jobs existed. R. at 297.

The ALJ determined that Thomas had not engaged in substantial gainful activity since March 1985, but that his afflictions, singly and collectively, failed to equal a listed impairment. R. at 245. The ALJ discounted Dr. Joseph's statement that Thomas could not perform even sedentary work by noting that, though she relied on the MRI, Dr. Hageman, who performed the MRI, did not reach the same conclusion. R. at 245. The ALJ also discounted Thomas' assertions of pain, citing Thomas' failure to undergo a biopsy as recommended as well as his failure to obtain or be prescribed a stronger painkiller. R. at 245. Ultimately, the ALJ found that Thomas had the ability to stand for at least fifteen minutes at a time, sit for at least one hour at a time, and lift no more than ten pounds. R. at 246, 247. Based on the testimony of Dr. George, the ALJ denied benefits because there were "a significant number of jobs in the national economy [Thomas] could perform." R. at 247. The ALJ's judgment was accepted by the Appeals Council, R. at 217, and thus became the final decision of the Secretary.

In June 1989, Thomas reopened his federal court case, alleging the ALJ's decision was not supported by the evidence and seeking discovery relating to Dr. George's alleged bias. On December 30, the magistrate recommended that Thomas' motion for summary judgment and his request for discovery be denied. In March 1990, Thomas also sought permission to introduce new evidence into the proceedings. On March 21, 1990, the district court denied this latter motion, and two days later the court accepted the Magistrate's recommendations. Thomas appeals these decisions.

II. DISCUSSION

A. The Propriety of the ALJ's Decision

Thomas contends that the ALJ's decision on disability was not supported by substantial evidence contained in the record as a whole. Crucial to Thomas' argument is the ALJ's failure to accord deference to Dr. Joseph's report finding Thomas to be "totally disabled." Thomas correctly points out that a treating physician's opinion is normally accorded a higher degree of deference than that of a consulting physician, see, e.g., Thompson v. Bowen, 850 F.2d 346, 349 (8th Cir.1988), but such deference is not always justified. When the treating physician's opinion consists of nothing more than conclusory statements, the opinion is not entitled to greater weight than any other physician's opinion. Ward v. Heckler, 786 F.2d 844, 846 (8th Cir.1986) (per curiam). Doctor Joseph's report is not a "comprehensive study" as alleged by Thomas, Appellant's Brief at 6, but rather consists of a two page form provided by an insurance company. R. at 322-23. It contains few explanations and is composed almost entirely of conclusions. Under these circumstances, the ALJ was not obliged to accord Dr. Joseph's opinion greater weight than the opinions of the other doctors in this case. ³

Thomas also alleges error in the ALJ's refusal to award benefits because of Thomas' complaints of pain. We review this determination by "review[ing] the administrative record as a whole, taking into account evidence which fairly detracts from the ALJ's findings," Turpin v. Bowen, 813 F.2d 165, 169 (8th Cir.1987), all the while recognizing that the Secretary's decision is not to be reversed merely because this panel might have been inclined to grant benefits. Bland v. Bowen, 861 F.2d 533, 535 (8th Cir.1988) (per curiam).

As is true in many disability cases, there is no doubt that the claimant is experiencing pain; the real issue is how severe that pain is. Cf. Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir.1987). In that regard, the ALJ recognized the need to rely on the factors announced in Polaski v. Heckler, 751 F.2d 943 (8th Cir.1984) (subsequent history omitted) and, after doing so, determined that Thomas' testimony about the crippling effects of his pain were not entirely credible. The ALJ's findings reflect that he was persuaded that Thomas' pain prevented him from "standing and walking for more than 15 minutes at a time, lifting more than ten pounds, and sitting for more than one hour at a time." R. at 247. These findings were totally consistent...