Lacey Reece v. Carolyn Colvin

Filing

OPINION FILED - THE COURT: James B. Loken, Raymond W. Gruender and Jane Kelly AUTHORING JUDGE:Jane Kelly (PUBLISHED) [4440780] [15-2460]

United States Court of Appeals
For the Eighth Circuit
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No. 15-2460
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Lacey Reece
lllllllllllllllllllll Plaintiff - Appellant
v.
Carolyn W. Colvin, Acting Commissioner of Social Security
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Jonesboro
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Submitted: January 14, 2016
Filed: August 24, 2016
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Before LOKEN, GRUENDER, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
After her application for Social Security benefits was denied by the
Commissioner, Lacey Reece sought judicial review and the claim was remanded to
obtain testimony from a vocational expert (VE) about her Residual Functional

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Capacity (RFC).1 A second administrative hearing was held on September 9, 2013,
after which her application was again denied. Reece again sought judicial review.
The magistrate judge2 affirmed the denial of her application for supplemental security
income (SSI). On appeal, Reece argues that the determination by the Administrative
Law Judge (ALJ) that she is not disabled is not supported by substantial evidence on
the record as a whole. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
Reece was born on January 15, 1980, and has a GED. The only job she ever
held was helping her husband on the turtle farm he owns. Reece filed an application
for SSI on December 8, 2009, claiming she was unable to work due to osteoarthritis,
lumbago, a congenital back defect, chronic stomach pain, and pulmonary restrictions.
As support for her claim, Reece presented medical records and a Medical
Source Statement from her treating physician, Dr. James Robinette, who had treated
her for back and leg pain since at least May 12, 2008. In the Medical Source
Statement, dated September 4, 2013, Dr. Robinette wrote that Reece suffers from
osteoarthritis, chronic low back pain, and spastic colon. Though he placed no
limitations on Reece’s ability to stand, walk, or sit during an 8-hour work day, he
opined that she could only stand or walk for 4 hours without a break and does not
have the physical stamina to complete a normal workday or maintain a full-time work
schedule. According to the Medical Source Statement, Reece could be expected to
miss more than three days of work per month and her medications would decrease her
1

An RFC is the most a claimant can do in spite of her limitations. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1).
2

The Honorable Joe J. Volpe, United States Magistrate Judge for the United
States District Court for the Eastern District of Arkansas, to whom the case was
submitted by consent of the parties under 28 U.S.C. § 636(c).
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ability to concentrate and persist in a work setting, requiring occasional redirection to
remain on task.
At the request of the Social Security Administration, Reece underwent a general
physical examination by Dr. Raymond Valdes, who diagnosed her with low back pain,
left hand weakness, and shortness of breath. On examination, Dr. Valdes determined
that Reece’s range of motion in her lumbar spine was limited to 75 degrees, rather
than a full 90 degrees, and that she had an 85% grip in her left hand, which he
characterized as a minimal loss. She otherwise had a normal range of motion for her
cervical spine, shoulders, elbows, wrists, hands, hips, knees, and ankles. Dr. Valdes
found Reece had a normal gait and coordination and could walk without an assistive
device. Based on these findings, Dr. Valdes gave his opinion that Reece had “mild
to moderate” limitations of functioning. Two state agency physicians, Dr. Jim Takach
and Dr. Bill Payne, reviewed the evidence in the record and corroborated Dr. Valdes’s
opinion. They both concluded that Reece could perform a wide range of light work
activity.
At the time of the second administrative hearing, Reece was 33 years old and
had not worked since June 1, 2009. Reece testified at her hearing as follows. She has
an extra vertebra in her lower back, arthritis, high cholesterol, and a lung infection.
She has back, leg, and hand pain. Despite being told by doctors to quit smoking, she
continues to smoke a pack of cigarettes per day. She takes several medications for
pain and other health issues, such as high cholesterol. She does not have side effects
from the medications and she testified that the pain medications help some. She wears
a rib brace, usually at night. She has a driver’s license but does not drive very often.
She testified that she cannot walk very far but she thought she could carry a 20 pound
grocery bag to her car. Reece does most of the cooking, cleaning, laundry, and
shopping for her household. She testified she home-schools her daughter but also
testified that she attends school functions when parents are invited. She does not

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participate in social activities such as church or clubs. During the day she cleans the
house, watches TV, and visits with her mother and sister.
The ALJ also heard testimony from a VE at the second hearing. In response to
a hypothetical question from the ALJ, the VE testified that Reece could perform light
work, as long as it did not require climbing ladders, ropes, or scaffolds, and did not
expose her to concentrated heat or cold. The VE testified that Reece could work as
a small parts packer on a line, a cleaner or polisher, or a small parts assembler. But
the VE testified that those jobs would not be available to someone who was absent
more than three days a month. In his final hypothetical, the ALJ asked the VE
whether there were jobs available for a claimant who could not sit, stand, or walk in
combination throughout the course of an eight-hour workday and needed to lie down
in order to alleviate back and leg discomfort. The VE testified that these requirements
could not be accommodated in any of the jobs she had mentioned.
Following the second disability determination hearing, the ALJ found that
Reece was not disabled. The ALJ evaluated Reece’s claim according to the five-step
sequential evaluation process established by the Social Security Administration. See
20 C.F.R. § 416.920(a)(4); see also Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.
2006). At steps one and two, the ALJ found Reece was not currently working and had
severe impairments—osteoarthritis with lumbago and pulmonary restriction—that
significantly limited her ability to perform basic work activities. At step three, the
ALJ compared Reece’s impairments to a list of impairments presumed severe enough
to preclude any gainful employment, see 20 C.F.R. pt. 404, subpt. p, app. 1, and
concluded that her impairments did not match or equal one of those listed
impairments. The ALJ then determined that Reece had the RFC to perform light work
as defined in 20 C.F.R. § 416.967(b),3 except that she needed to be limited to jobs that
3

According to 20 C.F.R. § 416.967(b), “[l]ight work involves lifting no more
than 20 pounds at a time with frequent lifting or carrying of objects weighing up to
10 pounds. Even though the weight lifted may be very little, a job is in this category
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did not require climbing ladders, ropes, or scaffolds, or expose her to unprotected
heights or hazards, and that limited all remaining postural functions to being
performed occasionally. In addition, the ALJ found that Reece needed to work in an
environment free from exposure to extreme heat or cold. Although the ALJ found
Reece had no past relevant work, the ALJ determined that there were other jobs in the
economy that she could perform, such as a line worker, cleaner, or small product
assembler. The ALJ determined that Reece therefore was not under a disability, as
defined in the Social Security Act, at any time from December 8, 2009, through the
date of the ALJ decision. The Social Security Appeals Council and the magistrate
judge affirmed the ALJ’s decision.
Reece appeals, contending that the ALJ’s decision that she is not disabled is not
supported by substantial evidence on the record as a whole because the ALJ failed to
give good reasons for discounting Dr. Robinette’s opinion.
II. Discussion
Our review of a district court’s denial of Social Security benefits is de novo.
Crawford v. Colvin, 809 F.3d 404, 407 (8th Cir. 2015). We “affirm the ALJ’s finding
if supported by substantial evidence on the record as a whole.” Id. (quoting Perkins
v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011)). Substantial evidence is such relevant
evidence “that a reasonable mind might accept . . . as adequate to support a decision,”
but it is a lower standard than preponderance of the evidence. Id. at 408 (quoting
Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008)). We consider all evidence in

when it requires a good deal of walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, you must have the ability to
do substantially all of these activities. If someone can do light work, we determine
that he or she can also do sedentary work, unless there are additional limiting factors
such as loss of fine dexterity or inability to sit for long periods of time.”
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the record, whether it supports or detracts from the ALJ’s decision. Id. In so doing,
“‘[w]e do not reweigh the evidence presented to the ALJ,’ and we defer to the ALJ’s
determinations regarding the credibility of testimony, as long as those determinations
are supported by good reasons and substantial evidence.” Johnson v. Colvin, 788 F.3d
870, 872 (8th Cir. 2015) (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.
2006)). Even if substantial evidence in the record could have supported a contrary
outcome, we must affirm the ALJ’s decision if there is also substantial evidence to
support it. Crawford, 809 F.3d at 408.
Reece asserts the ALJ failed to give proper weight to Dr. Robinette’s opinion.
Reece points to the Medical Source Statement Dr. Robinette filled out. In the Medical
Source Statement, he checked “no” in response to the following questions: “Would
patient have the physical stamina to complete a normal work-day, workweek, and
maintain an ordinary work routine?” and “Is your patient capable of maintaining a
full-time work schedule?” In the same Medical Source Statement, however, Dr.
Robinette also noted that Reece could lift and carry 20 pounds both occasionally (1/3
of an 8-hour day) and frequently (2/3 of an 8-hour day), and had no limitation on her
ability to stand, walk, or sit during an 8-hour day. The ALJ found Dr. Robinette’s
opinion that Reece could not maintain a full-time work schedule unpersuasive in light
of the rest of the record as a whole.
“A treating physician’s opinion regarding an applicant’s impairment will be
granted controlling weight, provided the opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in the record.” Hamilton v. Astrue, 518 F.3d 607, 610
(8th Cir. 2008) (quoting Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000)). Although
a treating physician’s opinion is usually entitled to great weight, it “do[es] not
automatically control, since the record must be evaluated as a whole.” Prosch v.
Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000) (quoting Bentley v. Shalala, 52 F.3d 784,
785–86 (8th Cir. 1995)). “The ALJ may discount or disregard such an opinion if other
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medical assessments are supported by superior medical evidence, or if the treating
physician has offered inconsistent opinions.” Hamilton v. Astrue, 518 F.3d 607, 610
(8th Cir. 2008) (quoting Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001)). Whether
the ALJ gives the opinion of a treating physician great or little weight, the ALJ must
give good reasons for doing so. Id. (citing 20 C.F.R. § 404.1527(d)(2)).
The ALJ found Dr. Robinette’s clinical and laboratory findings and ultimate
opinion to be “highly inconsistent with the objective medical evidence in the record
as well as his own treatment notes.” The ALJ also found other evidence in the record,
such as Reece’s activities of daily living and Dr. Valdes’s findings, did not support
Dr. Robinette’s opinion and supported a much higher level of functioning than would
be expected from someone with the limitations described in Dr. Robinette’s Medical
Source Statement. The ALJ gave good reasons for finding unpersuasive Dr.
Robinette’s opinion that Reece could not maintain a full-time work schedule or have
the stamina to perform an 8-hour work day.
First, the ALJ explained that Dr. Robinette’s opinion seemed to be based on
Reece’s subjective complaints rather than any objective medical evidence, such as
laboratory diagnostic results or referrals to specialists. See Cline v. Colvin, 771 F.3d
1098, 1104 (8th Cir. 2014) (Commissioner may give treating physician’s opinion less
deference when it is based on claimant’s subjective complaints rather than objective
medical evidence). In fact, as the ALJ noted, the objective tests that were done—tests
for rheumatoid arthritis (RA), and a test for elevated thyroid stimulating hormone
(TSH) and restless leg (RL)—showed no medical problem. The ALJ noted that Dr.
Robinette’s treatment notes did not contain any objective observations related to
Reece’s leg or back pain, such as observations of swollen joints or nodes or X-rays
showing the erosion of joints. The ALJ also observed that Dr. Robinette provided
routine, conservative medical treatment for Reece’s back and leg pain and that her
pain was treated effectively with medication, according to Reece’s own testimony.

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Moreover, Reece’s primary complaints at her last two visits to Dr. Robinette,
which occurred more than 7 months apart, were unrelated to back or leg pain. In
October 2012, her primary complaint was a bite on her leg, and in May 2013 she
received a routine medication refill and requested an oral surgery referral. A review
of Dr. Robinette’s treatment notes shows that, at times, Reece reported that her pain
had improved because of her medications. Additionally, in June 2011, Reece had an
appendectomy. The hospital records submitted as part of the record show she reported
that she was in relatively good health and had a good ability to do activities and
exercise. A lack of complaints to a treating physician detracts from a claimant’s
allegations of a disabling impairment. Fredrickson v. Barnhart, 359 F.3d 972, 976
(8th Cir. 2004).
Second, other evidence in the record also supports the ALJ’s decision not to
accord Dr. Robinette’s opinion controlling weight. As noted by the ALJ, Reece’s
daily activities are not indicative of someone who is completely unable to work. The
ALJ agreed that Reece’s impairments reasonably could be expected to cause back and
leg pain but found that she had exaggerated her symptoms to some extent. The ALJ
noted Reece’s daily activities—maintaining a house, driving, being able to carry a
20-pound grocery bag from a store to her car—were not indicative of someone who
was completely unable to work due to disabling pain. For example, the ALJ observed
that driving a car requires concentration and mental skill and the physical ability to sit,
turn a steering wheel, and operate foot controls. Evidence of daily activities that are
inconsistent with allegations of disabling pain may be considered in judging the
credibility of such complaints. Dunahoo v. Apfel, 241 F.3d 1033, 1038–39 (8th Cir.
2001).
In addition, the ALJ considered Dr. Valdes’s consultative examination. Dr.
Valdes found that Reece’s range of motion in her lumbar spine was only 75 degrees,
rather than 90 degrees, but Reece otherwise had a full range of motion in her spine.
In addition, his examination showed Reece had negative straight leg raises, no muscle
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atrophy, no sensory abnormalities, and no muscle spasms. She had no muscle
weakness, normal reflexes, no joint deformities or instability, normal gait and
coordination, and could walk without an assistive device. Dr. Valdes concluded that
Reece has only “mild to moderate” limitations in functioning. Dr. Valdes’s opinion
was corroborated by the two state agency physicians who agreed that Reece could
perform a wide range of light work activity.
Upon careful review of the record, we conclude that the Commissioner gave
good reasons for discounting Dr. Robinette’s opinion and that substantial evidence in
the record as a whole supports the Commissioner’s decision that Reece was not
disabled. We accordingly affirm the denial of benefits.
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