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Van Vickle v. Astrue: SOCIAL SECURITY - adverse credibility finding of fact supported by substantial evidence; conflicts in evidence

1 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).
United States Court of Appeals
No. 07-2990
Kathy S. Van Vickle, *
Appellant, **
Appeal from the United States
v. * District Court for the
* District of Minnesota.
Michael J. Astrue, Commissioner *
of Social Security, *
Appellee. *
Submitted: March 14, 2008
Filed: August 21, 2008
Before BYE, SMITH, and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
Kathy Van Vickle appeals the judgment of the district court1 upholding the final
decision of the Commissioner of Social Security to deny her application for disability
insurance benefits. We affirm.
On October 23, 2003, Van Vickle filed an application for disability insurance
benefits under Title II of the Social Security Act. Van Vickle claimed that she could
not work because she suffered from seronegative rheumatoid arthritis (adult Stills
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 Vickles 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 Vickle 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 Vickle also
claimed that she suffered from extreme fatigue, although she did not mention
fatigue as a reason she stopped working. Van Vickle further testified that she suffered
from side effects from her medications. In particular, she testified that methotrexate,
which she took every Wednesday for her Stills 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 Vickle, 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 Vickle 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 Vickle was not disabled. At steps one
through three, the ALJ found that Van Vickle 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
Vickle 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 Vickle 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 Vickles 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
Vickles daily activities and the reports of three treating and examining physicians.
The ALJ specifically mentioned that he found Van Vickles testimony of her problem
with ongoing fatigue to be in conflict with the medical opinions of Van Vickles
doctors, the lack of medical support indicating an ongoing problem with fatigue, and
Van Vickles reported daily activities. Although Van Vickle testified at the hearing
that she suffered from side effects from her medication, the ALJ noted that Van Vickle
had not reported such significant side effects to her doctors.
Van Vickle petitioned the Appeals Council for review. She submitted new
evidence, including a report from Lisa Neubauer, an occupational therapist, who
opined that Van Vickle was performing below the sedentary physical demand level.
Neubauer reported that Van Vickles maximum weight handling is between 5 and 10
2We 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.
lbs, and that her [s]itting 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 ALJs decision became
the final decision of the Commissioner. Browning v. Sullivan, 958 F.2d 817, 822 (8th
Cir. 1992).
The district court upheld the Commissioners decision. On appeal, Van Vickle
argues that there is not substantial evidence on the record to support the ALJs adverse
credibility finding, and that the case should be remanded in light of the new evidence
presented to the Appeals Council.
We review the district courts decision de novo, and will affirm if the
Commissioners 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).2 Substantial evidence is relevant evidence that a reasonable
mind would accept as adequate to support the Commissioners decision. Young v.
Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000). We consider evidence that supports as
well as detracts from the Commissioners 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).
Van Vickle argues on appeal that substantial evidence does not support the
ALJs finding that her testimony was not entirely credible. An ALJ may discount a
claimants 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 Vickle challenges the ALJs 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 Vickle 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 ALJs finding that
Van Vickle can sit for thirty minutes without changing position. Although Van Vickle
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 Vickles treating physicians, Dr.
Kristi Arel and Dr. Sunny Kim, reported that Van Vickle should change positions
every thirty minutes. The report from Neubauer, the occupational therapist, takes a
different view. Neubauer states that Van Vickles sitting tolerance is ten to twenty
minutes. But the fact that Van Vickle can point to some contradictory evidence in the
record does not lead to a conclusion that the ALJs decision is not supported by
substantial evidence. In certain circumstances, an ALJ may determine that an
occupational therapists opinion outweighs the opinion of a treating physician, such
as where the occupational therapist has seen the individual more often than the
3 Citing Sloan v. Astrue, 499 F.3d 883, 889 (8th Cir. 2007), Van Vickle argues
that we should remand her case to the ALJ to consider Neubauers report in light of
SSR 06-3p, which was published after the ALJs 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 ALJs 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
Neubauers 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 ALJs
treating source.3 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
Vickle more than once, while Drs. Arel and Kim saw Van Vickle on several
occasions. Thus, it would be entirely appropriate for an ALJ to give more weight to
Van Vickles treating doctors opinions. Riley v. Shalala, 18 F.3d 619, 622 (8th Cir.
The ALJs determination that Van Vickles medications do not create any
significant side effects that prevent her from working is also supported by substantial
evidence. Van Vickle 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 Vickles Stills disease, tell another story. For
example, on May 5, 2003, Dr. Florell notes that Van Vickle 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 Vickle 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 Vickle 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 Vickle nauseous, aside from her own testimony, is a report of Dr. Florell
from March 18, 2005, in which he notes that [Van Vickle] is now on tablet
methotrexate because they cant 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 Vickle also disagrees with the ALJs 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 Vickle did not have a history of diarrhea from her
medications. And though some of the other side effects may have caused discomfort,
Van Vickle 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 Vickle 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 Vickle claims that she has had an ongoing fatigue problem since December 1998.
Van Vickle nonetheless worked until April 2003. Thus, despite suffering from what
she calls extreme fatigue, Van Vickle continued working for over four years. In
addition, at the hearing, Van Vickle 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 Vickle did not mention fatigue, or any other side effect of medication.
Van Vickle 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 Vickles 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 Vickle argues that the ALJ misread Dr. Arels report, and that the
mistaken reading was a factor in the ALJs ultimate conclusion that Van Vickle could
perform her past work as a social worker. In her hand-written report, it appears that
Dr. Arel wrote that Van Vickle 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 Vickle 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 Vickle needed frequent naps during the workday. He found that this assertion
was not supported by the record. Assuming that the ALJ misread Dr. Arels report,
we see no prejudice to Van Vickle. The ALJ did not rely on his belief that Dr. Arel
thought Van Vickle could work. In fact, the ALJ noted that later in her report, Dr.
Arel stated that Van Vickles condition prevented her from sustaining gainful
employment. The ALJ correctly noted, however, that the ultimate conclusion of
whether Van Vickle 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 Vickle, and actually adopted them. There is no indication that the ALJ would
have decided differently had he read the hand-written 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 F. Appx 647, 651 n.2 (9th Cir. 2008).
* * *
For these reasons, the judgment of the district court is affirmed.


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