Whitman v. Colvin

• Decision Date: 07 August 2014
• Docket Number: No. 13–2215.,13–2215.
• Citation: 762 F.3d 701
• Parties: Rick A. WHITMAN, Plaintiff–Appellant v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

762 F.3d 701

Rick A. WHITMAN, Plaintiff–Appellant

v.Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant–Appellee.

No. 13–2215.

United States Court of Appeals, Eighth Circuit.

Submitted: April 17, 2014.

Filed: Aug. 7, 2014.

Thomas A. Krause, argued, Des Moines, IA, for Appellant.

Joshua Ryan Sumner, Assistant Regional Counsel, Social Security Administration, argued, Kansas City, MO, for Appellee.

Before RILEY, Chief Judge, BENTON and KELLY, Circuit Judges.

RILEY, Chief Judge.

Rick Whitman applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401–434. The Acting Commissioner of Social Security (Commissioner) denied Whitman benefits, and the district court ¹ affirmed the Commissioner's decision. Whitman appeals. We have appellate jurisdiction under 28 U.S.C. § 1291. We affirm.

I. BACKGROUND

Rick Whitman claims he has been disabled since June 15, 2007, because of degenerative disc disease and right thumb degenerative joint disease. Whitman's spotty work history since 1997 consists of manual labor jobs, and he has not worked at all since his alleged onset date.

Whitman was incarcerated from November 2007 to October 2008. As part of his disability application, Whitman submitted a prison “intake screening” stating Whitman had “[l]ower back problems due to numerous falls” and a physical report stating he had a history of “lower back pain [and] report[ed] Tylenol [was] not helping much.” The medical practitioner listed her impressions as “44 [year old] healthy male” with “[history] of chronic lower back pain” and prescribed ibuprofen, with “no [work] restrictions.” Whitman's “Exit Status” report upon his release did not list back pain as a “health problem,” although he was again prescribed ibuprofen.

Whitman submitted no medical records from the time of his release in October 2008 until he was evaluated for his disability application in March 2010. On March 8, 2010, Whitman's back x-ray, interpreted by Ryan M. Holthaus, M.D., showed “[n]o lumbar spine fracture or dislocation” and “normal alignment,” but “[m]oderately severe L5–S 1 degenerative disk disease.” On March 17, 2010, Whitman was personally evaluated by Thomas C. Graham, M.D., who reported Whitman complained of “unbearable back pain for the past two years,” which Whitman attributed to falls he had suffered during his work life. Whitman told Dr. Graham he had severe pain at night that interfered with his ability to sleep. Whitman “also state[d] that he can't walk ... any distance without developing severe pain in his back,” and had trouble bending forward and straightening back up. Dr. Graham stated conclusively, “[Whitman] is disabled now and not able to work at all.” Dr. Graham wrote:

I feel he has generalized osteoarthritis especially in his back, right wrist, and right thumb.... I think he is truly disableddue to his back. I think it would be very difficult for him to carry or lift anything of any weight. Standing, moving about, walking, and sitting for an 8 hour day would be very difficult for him. Stooping, climbing, kneeling, and crawling would be very difficult.

In contrast, Whitman's initial medical records evaluating physician, Mary Greenfield, M.D., assigned Whitman a residual functional capacity (RFC) stating he could occasionally lift twenty pounds, frequently lift ten pounds, and stand or walk and sit about six hours in an eight-hour work day, with unlimited push and pull activities. Dr. Greenfield considered but discounted Dr. Graham's assessment, giving it

little weight since it is more restrictive than self reported activities. [Whitman] reports ... he is able to lift 50–100 pounds but it is painful, carry 20–30 pounds, walk 1–2 blocks, and uses cane when back gets real bad. [Whitman's] allegations are eroded to some degree by his failure to seek related care and to report the degree of functional limitation that he reports to this agency.²

The Commissioner denied Whitman's application on initial review. Upon reconsideration a few months later in June 2010, a second physician evaluating medical records, Jan Hunter, D.O., affirmed Dr. Greenfield's RFC. The Commissioner denied Whitman's application on reconsideration.

In May 2011, Whitman presented to Joseph A. Brunkhorst, M.D., complaining of back pain. Other than Dr. Graham's disability evaluation over a year earlier, this was the first time Whitman sought medical care since his release in October 2008. Dr. Brunkhorst prescribed a regimen of a prescription pain reliever for Whitman's back pain. In July 2011, Whitman returned to Dr. Brunkhorst's clinic, but saw David L. Van Gorp, M.D. Dr. Van Gorp wrote, “Apparently, [Whitman] call[ed] and the nurses said he had to have an appointment and wouldn't refill his meds. When he sees me he says he need[s] something stronger.” Dr. Van Gorp prescribed a narcotic, commenting, “I [am] not sure about him in terms of chronic usage. We will let Dr. Brunkhorst sort it out.”

Whitman appealed the Commissioner's denial of benefits to an Administrative Law Judge (ALJ), who heard Whitman's case on November 7, 2011. Whitman appeared pro se and testified he was not interested in legal representation. Whitman said he was disabled because his “lower back and [his] hips don't hold in place,” and he has “sciatic nerve damage that runs down [his] left leg,” “arthritis in [his] wrists, [his] elbows[, and his] shoulders,” “a neck problem that hasn't been diagnosed yet,” and “real bad headaches two to three times a week.” Whitman stated he had seen no doctor other than Dr. Brunkhorst because of a lack of insurance, but he hadn't “tried any of the charity hospitals” within the last thirty years. Whitman stated he could lift twenty-five pounds once or twice an hour.

Also at the ALJ hearing, a vocational expert testified that someone with Whitman's RFC, as stated by Dr. Greenfield, would be able to perform at least three jobs of which there were thousands of openings in Iowa and hundreds of thousands of openings nationally.

The ALJ upheld the Commissioner's denial of benefits, finding “the medical evidence does not support a finding of total disability.” Like Dr. Greenfield, the ALJ discredited Dr. Graham's opinion because “it is more restrictive than self-reported activities.” The ALJ considered the factors articulated in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984) (order), and stated,

Although the claimant has described daily activities that are fairly limited, two factors weigh against considering these allegations to be strong evidence in favor of finding the claimant disabled. First, allegedly limited daily activities cannot be objectively verified with any reasonable degree of certainty. Secondly, even if the claimant's daily activities are truly as limited as alleged, it is difficult to attribute that degree of limitation to the claimant's medical condition, as opposed to other reasons, in view of the relatively weak medical evidence and other factors discussed in this decision.

The ALJ concluded Whitman “has not generally received the amount and type of medical treatment one would expect for a totally disabled individual, considering the relatively infrequent trips to the doctor for the allegedly disabling symptoms and significant gaps in the claimant's history of treatment.” In addition to the “inconsistencies” that “eroded” Whitman's credibility, the ALJ noted that Whitman had received unemployment compensation throughout 2010, during the time he alleges he was disabled. The ALJ also commented that Whitman “acknowledged being incarcerated for indecent contact with a child from November 2007–October 2008, which could also be affecting his ability to obtain employment in and of itself.”

Whitman appealed the ALJ's decision to the Appeals Council and submitted a new medical record dated January 25, 2012, from Dr. Brunkhorst. Dr. Brunkhorst assessed Whitman as follows:

Back pain at the present time I don't think i[s] surgical, I think he needs physical therapy.... As far as is he entitled to disability? With the amount of pain pills he is taking and the way he acts he appears to be in a lot of pain.... I feel that he is probably entitled to some disability because of the amount of pain that he has and his frustration of trying to get a job[.]

After considering Dr. Brunkhorst's note, the Appeals Council declined review of Whitman's claim.

Whitman, represented by counsel, sought judicial review in the district court pursuant to 42 U.S.C. § 405(g). After full briefing by the parties, and six months after filing his complaint, Whitman moved to remand for the ALJ to consider additional medical evidence. The district court denied the motion and affirmed the ALJ's decision.

II. DISCUSSIONA. Standard of Review

“The claimant bears the burden of proving disability.” Teague v. Astrue, 638 F.3d 611, 615 (8th Cir.2011). “[I]n order to receive benefits,” Whitman “must show that he was disabled on or before” June 30, 2011, “his date last insured.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir.2002). See20 C.F.R. §§ 404.101, 404.130–.131. Because the Appeals Council declined review of Whitman's claim, “the ALJ's decision [is] the final decision of the Commissioner.” Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.2000). “The findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). “ ‘We review de novo the District Court's determination of whether substantial evidence on the record as a whole supports the ALJ's decision.’ ” Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir.2011) (quoting Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir.2009)). “ ‘Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support the Commissioner's conclusion.’ ” Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.2005) (quoting Young, 221 F.3d at 1068).

[W]e will not reverse an administrative decision “simply because some...