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Finch v. Astrue: SOCIAL SECURITY - subjective complaints evaluated OK; credibility; no error discounting treating doctor's opinion;

1The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
United States Court of Appeals
No. 08-1425
Gary W. Finch, *
Appellant, **
Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Michael J. Astrue, Commissioner *
of Social Security, *
Appellee. *
Submitted: September 24, 2008
Filed: November 24, 2008
Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
WOLLMAN, Circuit Judge.
Gary Finch appeals from the district courts1 order affirming the
Commissioners denial of disability insurance benefits. We affirm.
Finch is a sixty-three-year-old man with a high school education, two years of
community college, and training in heating and refrigeration repair. For twenty years
he worked for the same company as a heating and air conditioner servicer and
appliance servicer. According to Finch, he was let go in 1999 because he was unable
to keep up with the workload. He lives alone and is able to care for his basic needs
and perform some household chores.
Finch filed for disability on June 28, 2000, basing his claim on a lack of
mobility in his back, neck, and right arm, as well as vertigo. His date last insured is
December 31, 2004. Following a hearing and a supplemental hearing, an
administrative law judge (ALJ) denied Finchs claim. After the Appeals Council
denied his request for review, Finch filed a civil action in the United States District
Court. On March 16, 2004, the district court remanded his case for further
proceedings at the request of the Social Security Administration. On August 24, 2005,
a second hearing was held before the ALJ. The ALJ concluded that the combination
of Finchs impairments was severe, but that he did not have an impairment or
combination of impairments listed or medically equal to a listed impairment. The ALJ
found that although Finch was unable to perform his past relevant work, there were
jobs in the national economy that he could perform and thus concluded that Finch was
not disabled.
After the Appeals Council denied Finchs request for review, he again filed a
complaint in federal district court. The district court granted summary judgment to
the Commissioner, affirming the ALJs decision.
On appeal Finch argues that the Commissioners decision should be reversed
because the ALJ failed to properly credit Finchs subjective complaints of pain, did
not properly evaluate the evidence in determining Finchs residual functional capacity,
and improperly substituted his own opinion for that of a medical examiners.
We will uphold the Commissioners decision if it is supported by substantial
evidence on the record as a whole. Harvey v. Barnhart, 368 F.3d 1013, 1015 (8th Cir.
2004). Substantial evidence is less than a preponderance but is enough that a
reasonable mind would find it adequate to support the conclusion. Eichelberger v.
Barnhart, 390 F.3d 584, 589 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294
F.3d 1019, 1022 (8th Cir. 2002)). This standard of review requires us to consider the
evidence that supports the Commissioners decision as well as the evidence that
detracts from it. Eichelberger, 390 F.3d at 589. That we would have come to a
different conclusion, however, is not a sufficient basis for reversal. Id. If, after
review, we find it possible to draw two inconsistent positions from the evidence and
one of those positions represents the Commissioners findings, we must affirm the
denial of benefits. Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996).
Finch argues that the ALJ erred in assessing his credibility. The ALJ found that
Finchs complaints of pain were not entirely credible in light of the evidence as a
whole. To assess a claimants credibility, the ALJ must look to the claimants daily
activities; the duration, frequency, and intensity of pain; precipitating and aggravating
factors; dosage, effectiveness, and side effects of medication; and functional
restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The claimants
work history and the absence of objective medical evidence to support the claimants
complaints are also relevant. Wheeler v. Apfel, 224 F.3d 891, 895 (8th Cir. 2000).
An ALJ may discount a claimants subjective complaints only if there are
inconsistencies in the record as a whole. Porch v. Chater, 115 F.3d 567, 572 (8th Cir.
1997). [Q]uestions of credibility are for the [ALJ] in the first instance. If an ALJ
explicitly discredits a claimants testimony and gives a good reason for doing so, we
will normally defer to that judgment. Karlix v. Barnhart, 457 F.3d 742, 748 (8th Cir.
2006) (quoting Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990)).
The ALJ addressed the Polaski factors and noted inconsistencies in the record
that led him to conclude that Finch was not as limited as he claimed. The ALJ noted
that Finch is able to care for himself and maintain his home, including mowing the
lawn, removing snow (albeit slowly), driving, and visiting friends. Finch reported
falling off a ladder on two occasions. Finch was thrown from a horse on two
occasions and was involved in a motorcycle accident. The ALJ recognized that Finch
had been hospitalized as a result of some of these mishaps, but he found it noteworthy
that Finch was able to engage in the activities that gave rise to those accidents during
the time that he was allegedly unable to work.
The ALJ also concluded that Finchs complaints were not supported by
objective medical evidence. The record shows that an objective medical cause has not
been established for Finchs complaints of low back pain and abdominal pain. Finchs
subjective complaints of pain were inconsistent with the findings of consultative
examiners. In January 2005, Stanley Smith, Ph.D., described Finch as appearing to
be in only mild discomfort, yet Finch described his pain level at a seven out of ten.
Christine Deignan, M.D., Rodney Carlson, M.D., and Lori ODell McCollum, Ph.D.,
all concluded that Finch was less limited than he asserted. Finchs treating physician,
William Davidson, M.D., described Finch as having a histrionic personality. Finchs
pain clinic physician, Michael A. Swanson, M.D.whose notes reflect repeated
skepticism about the information Finch provided to himdescribed Finchs pain
history as inconsistent.
Finch argues that he has consistently sought medical treatment and has an
unbroken earnings record from 1961 to 1999. Although these two factors weigh in
Finchs favor, it was for the ALJ to weigh all the evidence and make a credibility
finding. After reviewing that evidence, we cannot say that the ALJs credibility
determination is not supported by the record as a whole.
Finch argues that the ALJs residual functional capacity assessment is in error
because it ignored Finchs treating physicians opinion and failed to take into account
Finchs cognitive limitations. Although a treating physicians well-supported opinion
is generally accorded substantial weight, it is not conclusive because the record must
be evaluated as a whole. Howe v. Astrue, 499 F.3d 835, 839 (8th Cir. 2007) (citing
Charles v. Barnhart, 375 F.3d 777, 783 (8th Cir. 2004)); see also Singh v. Apfel, 222
F.3d 448, 452 (8th Cir. 2000). Moreover, [t]he ALJ may reject the conclusions of
any medical expert, whether hired by the claimant or the government, if they are
inconsistent with the record as a whole. Wagner v. Astrue, 499 F.3d 842, 848 (8th
Cir. 2007). The ALJ is charged with the responsibility of resolving conflicts among
medical opinions. Id.
Finchs primary challenge to the ALJs physical residual functional capacity
determination is his contention that the ALJ dismissed the opinion of Finchs treating
physician, Dr. Kurt Andersen, particularly Dr. Andersens statement that Finch could
not sit or stand for more than fifteen minutes at a time without experiencing increased
pain. The ALJ found instead that Finch could sit or stand for thirty minutes at a time.
The ALJ did not dismiss Dr. Andersens opinion, but instead detailed the ways
in which it was inconsistent with other medical opinions in the record. Specifically,
the ALJ noted that Dr. Carlson, a consultative physician, concluded that Finch could
sit or stand for six hours with normal breaks during an eight-hour work day. Another
consultative physician, George X. Trimble, M.D., confirmed this assessment.
Although a third consultative physician, Dr. Newton B. White, agreed with Dr.
Andersen that Finch could not sit or stand for more than fifteen or twenty minutes, the
ALJ noted inaccurate statements in Dr. Whites opinion that undermined his
Additionally, the ALJ noted that at the time Dr. Andersen made his February
2003 assessment, Finch was recovering from a pelvic fracture and deep vein
thrombosis, from both of which ailments he experienced a full recovery. Although
Dr. Andersen made similar statements in January and April of 2005, he qualified them
by stating that they were based on Finchs subjective pain reports and an MRI study
that did not provide an explanation for Finchs low back pain complaints. Given that
the ALJ found Finchs subjective reports of pain not entirely credible, a residual
functional capacity assessment based on those reports was appropriately not given
substantial weight. Accordingly, the ALJs rejection of Dr. Andersens opinion
regarding Finchs physical limitations is supported by substantial evidence in the
Finch also argues that the ALJ should have included Finchs limited mental
capacity in his finding of residual functional capacity and in the hypothetical to the
vocational expert. In fashioning an appropriate hypothetical question for a
vocational expert, the ALJ is required to include all the claimants impairments
supported by substantial evidence in the record as a whole. Swope v. Barnhart, 436
F.3d 1023, 1025 (8th Cir. 2006) (citing Grissom v. Barnhart, 416 F.3d 834, 837 (8th
Cir. 2005)).
On June 4, 2000, Finch underwent a nerve root injection that was improperly
performed. Finch became dazed, confused, and had difficulty talking. Finch argues
that this injection resulted in permanent decreased mental capacity. On November 8,
2002, Finch underwent a psychological assessment that included intellectual and
memory testing, performed by Dr. McCollum. The results showed that Finch had a
verbal IQ of ninety-three, a performance IQ of eighty-four, and a full scale IQ of
eighty-nine. Dr. McCollum concluded that Finchs intellectual functioning is in the
low average range. Based on Finchs past work experience and his education, she
opined that Finch had experienced cognitive decline and had previously had at least
average intelligence.
The ALJ detailed Dr. McCollums conclusions, but gave significant weight to
Charlene Bells, Ed.D., contradictory testimony. At the hearing, Dr. Bell stated that
a diagnosis of cognitive disorder was not clinically established by the record. Dr.
Bells opinion is supported by Dr. Smith, who concluded that Finchs IQ scores were
normal and did not necessarily represent a decline in functioning. The ALJ also noted
that Finchs medical records indicated that he had recovered from the effects of the
faulty injection. The ALJ specifically found that Finchs mental impairments did not
restrict his daily activities, social functioning, or concentration. Although there is
evidence in the record that might sustain a different finding, the ALJs determination
is supported by substantial evidence.
Additionally, the ALJ was not required to present Finchs limited mental
capacity to the vocational expert. Although a claimants borderline intellectual
functioning must be included in the hypothetical to the vocational expert, Swope, 436
F.3d at 1024-25, Dr. McCollum characterized Finchs intellectual functioning as
within the low average range and stated that he would likely score within the full scale
IQ range of eighty-five to ninety-three in future testing. Thus, there is substantial
evidence that Finch does not exhibit borderline intellectual functioning.
Finch argues that the ALJ improperly substituted his own opinion for that of Dr.
White, who stated that Finchs ataxia equaled a listed impairment. An ALJ must not
substitute his opinions for those of the physician. Ness v. Sullivan, 904 F.2d 432,
435 (8th Cir. 1990). As noted above, however, [t]he ALJ may reject the opinion of
any medical expert where it is inconsistent with the medical record as a whole. Estes
v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002).
Dr. White testified at the hearing before the ALJ via telephone. Although it is
not entirely clear from the record which listing Dr. White was referring to during his
testimony, the ALJ concluded that he was likely discussing section 11.04(B). Listing
11.04(B) involves significant and persistent disorganization of motor function in two
extremities, resulting in sustained disturbance of gross and dexterous movements, or
gait and station. Dr. White did not conclude that Finch met this listing, only that he
equaled it. The regulations allow a finding that a claimant equals a listing when his
impairments or combination of impairments are of equal medical significance to the
required criteria. 20 C.F.R. 404.1526. Medical equivalence must be supported by
medical findings; symptoms alone are insufficient. See id.; Social Security Ruling 86-
8. Section 404.1526(e) places the responsibility for deciding medical equivalencies
. . . with the [ALJ] or Appeals Council.
The ALJ noted that Finchs motor functioning has not played a significant role
in his overall clinical picture during the relevant time period. Although Finchs
medical records show occasional difficulty with the use of his arms and hands, other
medical evidence shows normal grip strength and dexterity. Similar inconsistencies
exist with respect to Finchs leg strength and gait. Finchs symptoms of ataxia
resulting from the faulty injection are also inconsistent. Finally, as noted above, the
ALJ assigned little weight to Dr. Whites opinion. Accordingly, the ALJs finding
that Finch did not equal a listed impairment is supported by substantial evidence and
thus must be upheld.
The judgment is affirmed.


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Bystanders Witnessed This.
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