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holding that if there is no indication the ALJ would have decided differently, any error is harmless
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No. 07-2990.
Submitted: March 14, 2008.
Filed: August 21, 2008.
Appeal from the United States District Court for the District of Minnesota, Susan R. Nelson, United States Magistrate Judge, affirmed. Claimant appealed.
Amy J. Doll, argued, Morris, MN, for appellant.
Janet M. Gumm, SSA, argued, Chicago, IL (Anne Kenny Kleinman, Special AUSA SSA, on the brief), for appellee.
Before BYE, SMITH, and COLLOTON, Circuit Judges.
Kathy Van Vickie appeals the judgment of the district court upholding the final decision of the Commissioner of Social Security to deny her application for disability insurance benefits. We affirm.
The Honorable Susan Richard Nelson, United States Magistrate Judge for the District of Minnesota, to whom the case was referred for decision by consent of the parties pursuant to 28 U.S.C. § 636(c).
I.
On October 23, 2003, Van Vickie filed an application for disability insurance benefits under Title II of the Social Security Act. Van Vickie claimed that she could not work because she suffered from seronegative rheumatoid arthritis (adult Still's disease) fibromyalgia, cervicalgia (neck pain), and degenerative disc disease, which caused her extreme fatigue and prevented her from sitting, standing, or walking for long periods of time. The regional commissioner denied Van Vickie's application initially and again on reconsideration. She then requested a hearing before an Administrative Law Judge (ALJ), which was held on August 18, 2005.
At the hearing, Van Vickie testified that she quit her previous job as a social worker, primarily because of the pain in her neck and back. She claimed that she could not sit for longer than twenty minutes without "fidgeting." Van Vickie also claimed that she suffered from "extreme fatigue," although she did not mention fatigue as a reason she stopped working. Van Vickie further testified that she suffered from side effects from her medications. In particular, she testified that methotrexate, which she took every Wednesday for her Still's disease, made her so nauseous that she could not work on Wednesday and sometimes on Thursday.
A vocational expert testified that a person of the same age, who possesses the same education and past work experience as Van Vickie, could work as a social worker even if the person was limited to (1) lifting and/or carrying ten pounds occasionally, and less than ten pounds frequently, (2) standing and/or walking with normal breaks for a total of two hours in an eight hour work day, (3) sitting with normal breaks for a total of six hours of an eight hour work day, and (4) changing position between sitting and standing every thirty minutes. The vocational expert testified, however, that if the person needed to change position every twenty minutes or take a day off each week for medical problems, as Van Vickie had testified, the person could not be gainfully employed.
Following the five-step evaluation process set forth in 20 C.F.R. § 416.920(a)(4), the ALJ determined that Van Vickie was not disabled. At steps one through three, the ALJ found that Van Vickie was not engaging in substantial gainful activity, that the combination of her impairments was severe, and that her impairments did not meet or equal a listed impairment. At step four, the ALJ found that Van Vickie was not disabled because she retained the residual functional capacity (RFC) to perform her past relevant work as a hospital social worker as it is typically performed in the national economy. Specifically, the ALJ found that Van Vickie had the RFC to "lift and/or carry 10 pounds occasionally and less than 10 pounds frequently, stand and/or walk (with normal breaks) for a total of about 2 hours in an 8-hour workday, if allowed to change positions every thirty minutes, [and] sit (with normal breaks) for a total of about 6 hours in an 8-hour work day, if allowed to change positions every thirty minutes."
The ALJ found that Van Vickie's "medically determinable impairments could reasonably be expected to produce the alleged symptoms," but that her "statements concerning the intensity, duration and limiting effects of these symptoms were not entirely credible." The ALJ noted that his RFC finding was consistent with Van Vickie's daily activities and the reports of three treating and examining physicians. The ALJ specifically mentioned that he found Van Vickie's testimony of her problem with ongoing fatigue to be in conflict with the medical opinions of Van Vickie's doctors, the lack of medical support indicating an ongoing problem with fatigue, and Van Vickie's reported daily activities. Although Van Vickie testified at the hearing that she suffered from side effects from her medication, the ALJ noted that Van Vickie had not reported such significant side effects to her doctors.
Van Vickie petitioned the Appeals Council for review. She submitted new evidence, including a report from Lisa Neubauer, an occupational therapist, who opined that Van Vickie was "performing below the sedentary physical demand level." Neubauer reported that Van Vickie's "maximum weight handling is between 5 and 10 lbs," and that her "[s]litting tolerance . . . is limited at between 10 and 20 minutes with repositioning." The Appeals Council considered the new evidence, but denied review because it "found that the information [did] not provide a basis for changing the [ALJ]'s decision." Upon denial of the request for review, the ALJ's decision became the final decision of the Commissioner. Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992).
The district court upheld the Commissioner's decision. On appeal, Van Vickie argues that there is not substantial evidence on the record to support the ALJ's adverse credibility finding, and that the case should be remanded in light of the new evidence presented to the Appeals Council.
II.
We review the district court's decision de novo, and will affirm if the Commissioner's decision is supported by substantial evidence on the record as a whole, including the new evidence that was considered by the Appeals Council. Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000); Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992). "Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support the Commissioner's decision." Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000). We consider evidence that "supports as well as detracts from the Commissioner's decision, and we will not reverse simply because some evidence may support the opposite conclusion." Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir. 2008) (internal quotations omitted).
We have noted on several occasions that consideration of evidence submitted only to the Appeals Council when evaluating the decision of an ALJ is a "peculiar task for a reviewing court," Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994), and others have urged us to reconsider the practice. See Eads v. Secretary of Dept. of Health and Human Servs., 983 F.2d 815, 817-18 (7th Cir. 1993). "But we do include such evidence in the substantial evidence equation," Mackey v. Shalala, 47 F.3d 951, 953 (8th Cir. 1995), and of course this panel must follow circuit precedent.
Van Vickie argues on appeal that substantial evidence does not support the ALJ's finding that her testimony was not entirely credible. An ALJ may discount a claimant's subjective complaints if there are inconsistencies in the record as a whole. Guilliams v. Barnhart, 393 F.3d 798, 802-03 (8th Cir. 2005); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). "Where adequately explained and supported, credibility findings are for the ALJ to make." Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). Although Van Vickie challenges the ALJ's credibility determination as a whole, she takes specific issue with the findings by the ALJ that she can sit for up to thirty minutes without changing position (Van Vickie testified that she needed to change position every twenty minutes), that she does not have significant side effects from her medication (she testified that she had to miss work one day per week because one of her medications made her nauseous), and that her subjective complaints of extreme fatigue were not entirely credible.
There is substantial evidence on the record to support the ALJ's finding that Van Vickie can sit for thirty minutes without changing position. Although Van Vickie testified that she had to change position every twenty minutes or she would be "fidgeting," she also testified that she rides in her car for twenty to thirty minutes and can "push" herself to ride an hour. Two of Van Vickie's treating physicians, Dr. Kristi Arel and Dr. Sunny Kim, reported that Van Vickie should change positions every thirty minutes. The report from Neubauer, the occupational therapist, takes a different view. Neubauer states that Van Vickie's sitting tolerance is ten to twenty minutes. But the fact that Van Vickie can point to some contradictory evidence in the record does not lead to a conclusion that the ALJ's decision is not supported by substantial evidence. In certain circumstances, an ALJ may determine that an occupational therapist's opinion outweighs the opinion of a treating physician, such as where the occupational therapist "has seen the individual more often than the treating source." Social Security Ruling (SSR) 06-3p, 71 Fed.Reg. 45, 593, 2006 WL 2329939 (Aug. 9, 2006). Here, however, there is no evidence that Neubauer saw Van Vickie more than once, while Drs. Arel and Kim saw Van Vickie on several occasions. Thus, it would be entirely appropriate for an ALJ to give more weight to Van Vickie's treating doctors' opinions. Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994).
Citing Sloan v. Astrue, 499 F.3d 883, 889 (8th Cir. 2007), Van Vickie argues that we should remand her case to the ALJ to consider Neubauer's report in light of SSR 06-3p, which was published after the ALJ's ruling. SSR 06-3p clarifies how the agency considers opinions from sources, such as occupational therapists, who are not "acceptable medical sources." In Sloan, the ALJ considered evidence from a medical source that was not an "acceptable medical source," but gave it "little weight." 499 F.3d at 887. After the ALJ's decision, the SSA published SSR 06-3p, which states that "an opinion from a medical source who is not an `acceptable medical source' may outweigh the opinion of an `acceptable medical source,' including the medical opinion of a treating source." We remanded for the ALJ to consider whether the new policy affected the prior decision. Id. at 889. In this case, the ALJ did not consider Neubauer's report at all, because it was not created until after the ALJ made his decision. Thus, the new Social Security ruling is not inconsistent with the ALJ's analysis.
The ALJ's determination that Van Vickie's medications do not create any significant side effects that prevent her from working is also supported by substantial evidence. Van Vickie testified that while she was still working, she was home sick each Wednesday because she felt so nauseous from taking methotrexate. The reports from Dr. Paul Florell, who treated Van Vickie's Still's disease, tell another story. For example, on May 5, 2003, Dr. Florell notes that Van Vickie had "a couple mouth sores or nasal sores from the methotrexate," but there was no mention of nausea in the report. In addition, Dr. Florell notes that he told Van Vickie that she could stop taking the methotrexate for two weeks, but that she decided to "continue with it," because the medication was "not bothering her that much." On June 20, 2005, Dr. Florell noted that Van Vickie worried that the methotrexate was "bothering her bladder," but again, there is no mention of nausea. The only evidence on the record that methotrexate made Van Vickie nauseous, aside from her own testimony, is a report of Dr. Florell from March 18, 2005, in which he notes that "[Van Vickie] is now on tablet methotrexate because they can't get the liquid, at this time, for her injections. It does make her a little bit more nauseated, but she has to put up with that for right now." Aside from nausea, Van Vickie also disagrees with the ALJ's assessment that the side effects from her medications (occasional blurred vision, fatigue, nausea, diarrhea, nose and mouth sores, and bladder problems), are not significant. Some of the evidence in the record simply contradicts her testimony. For example, on June 20, 2005, Dr. Florell notes that Van Vickie did not have a history of diarrhea from her medications. And though some of the other side effects may have caused discomfort, Van Vickie has not indicated that they are significant in the sense that they prevent her from working as a social worker. Most of the evidence to which Van Vickie points regarding her fatigue (which she claims is both a side effect of medication and a symptom of her illnesses) is from before the alleged onset date of disability. In fact, Van Vickie claims that she has had an ongoing fatigue problem since December 1998. Van Vickie nonetheless worked until April 2003. Thus, despite suffering from what she calls "extreme fatigue," Van Vickie continued working for over four years. In addition, at the hearing, Van Vickie said that she stopped working mostly because of her neck and back pain. When asked specifically why she quit her job as a social worker, Van Vickie did not mention fatigue, or any other side effect of medication. Van Vickie bears the burden to prove that her disability prevents her from performing her past work. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). The ALJ concluded that Van Vickie's medication side effects are not significant enough to prevent her from working, and that her subjective complaints in general are inconsistent with the record. This conclusion is supported by substantial evidence.
Finally, Van Vickie argues that the ALJ misread Dr. Arel's report, and that the mistaken reading was a factor in the ALJ's ultimate conclusion that Van Vickie could perform her past work as a social worker. In her handwritten report, it appears that Dr. Arel wrote that Van Vickie "may walk, but still will require frequent rest ([no] prolonged walking)." (A.R. at 287) (emphasis added). The ALJ read this statement to say that Van Vickie "may work, but still will require frequent rest." Reading the report to say "work" rather than "walk," the ALJ thought Dr. Arel was suggesting that Van Vickie needed "frequent naps" during the workday. He found that this assertion was not supported by the record. Assuming that the ALJ misread Dr. Arel's report, we see no prejudice to Van Vickie. The ALJ did not rely on his belief that Dr. Arel thought Van Vickie could work. In fact, the ALJ noted that later in her report, Dr. Arel stated that Van Vickie's condition prevented her from sustaining gainful employment. The ALJ correctly noted, however, that the ultimate conclusion of whether Van Vickie could sustain gainful employment is a question for the Commissioner. 20 C.F.R. § 404.1527(e)(1); see also Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) ("[T]reating physicians' opinions are not medical opinions that should be credited when they simply state that a claimant can not be gainfully employed, because they are merely opinions on the application of the statute, a task assigned solely to the discretion of the [Commissioner]." (internal quotations omitted)). The ALJ properly considered the physical limitations that Dr. Arel placed on Van Vickie, and actually adopted them. There is no indication that the ALJ would have decided differently had he read the handwritten notation to say "walk" rather than "work," and any error by the ALJ was therefore harmless. See Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007); Berger v. Astrue, 516 F.3d 539, 544-45 (7th Cir. 2008); Schow v. Astrue, 272 FedAppx. 647, 651 n. 2 (9th Cir. 2008).
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For these reasons, the judgment of the district court is affirmed.