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Wiese v. Astrue: SOCIAL SECURITY - more weight to medical expert than treating doctor OK; no Polaski error

1The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
United States Court of Appeals
No. 08-1186
Christina M. Wiese, *
Appellant, * Appeal from the United States
* District Court for the
v. * Southern District of Iowa.
Michael J. Astrue, Commissioner *
of Social Security, *
Appellee. *
Submitted: September 24, 2008
Filed: January 16, 2009
Before BYE, BEAM and SHEPHERD, Circuit Judges.
BEAM, Circuit Judge.
Christina Wiese appeals from the district court's1 order affirming the
Commissioner's denial of supplemental security income. We affirm.
At the time of the 2006 hearing before the Administrative Law Judge (ALJ),
Wiese was twenty-five years old and unemployed. The last time she worked was in
2003, and even then only for two months. Although she had originally filed for
benefits under Title II and Title XVI, only her application for supplemental security
income remained unresolved.
Wiese filed for disability in 2001 on the basis of her polycystic ovarian
syndrome, morbid obesity, fatigue, severe pain, panic attacks and headaches. By her
own estimation she did not, at any time during the relevant time period, weigh less
than 350 pounds and states she is 5'5" tall. At the time of the most recent hearing, the
ALJ considered the following severe combination of impairments: polycystic ovarian
disorder, hypothyroidism, obesity, glucose intolerance, a history of asthma, allegations
of medically determinable impairments resulting in complaints of pain in multiple
joints, major depressive disorder, a history of panic attacks and anorexia, a history of
possible bipolar affective disorder, obsessive compulsive disorder and general anxiety
disorder. These impairments did not, however, in combination, meet or medically
equal one of the listed impairments. Additionally, Wiese amended her onset date,
through her attorney, to May 31, 2004, at this hearing.
Based on a review of the evidence, including Wiese's own testimony at the
August 2006 hearing, the ALJ determined Wiese was not disabled. In doing so, the
ALJ held that Wiese had the residual functional capacity (RFC) to lift between ten and
twenty pounds, stand ten to twenty minutes at a time with the ability to walk and stand
for six hours in an eight-hour day, and sit two to three hours at a time for a total of at
least six hours in an eight-hour day. The ALJ further held that Wiese could not
perform very complex or technical work, but could do simple, routine repetitive work
not requiring constant, close attention to detail; could occasionally interact with the
public; would require occasional supervision; could work at no more than regular
pace; and could not perform high stress work. Based on this RFC determination, the
ALJ found Wiese capable of performing past relevant work as a data entry clerk, film
sorter and sales attendant.
After the Appeals Council denied Wiese's request for review, she filed a
complaint in federal district court. The district court affirmed the Commissioner's
On appeal Wiese argues that the Commissioner's decision should be reversed
because the ALJ failed to adequately consider the medical opinions of Wiese's treating
physicians, primarily Dr. Doyle, her psychiatrist, and her therapist, Judy Prochaska,
and gave too much weight to the testimony of the non-examining medical expert. She
further argues that the ALJ failed to evaluate Wiese's extreme obesity as it might
affect her ability to sleep and perform work activities, and failed to include her
diagnosed ailments of fibromyalgia and restless leg syndrome in his analysis. Finally,
Wiese claims that the ALJ failed to adequately elaborate on the adverse credibility
finding in this case.
"We will uphold the Commissioner's decision if it is supported by substantial
evidence on the record as a whole." Finch v. Astrue, 547 F.3d 933, 935 (8th Cir.
2008). "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 Commissioner's decision as well as the evidence that
detracts from it." Finch, 547 F.3d at 935. That we would come to a different
conclusion, however, is not a sufficient basis for reversal. Id. "It is not the role of this
court to reweigh the evidence presented to the ALJ or to try the issue in this case de
novo." Loving v. Dep't of Health and Human Servs., Sec'y, 16 F.3d 967, 969 (8th Cir.
1994). "If, after review, we find it possible to draw two inconsistent positions from
the evidence and one of those positions represents the Commissioner's findings, we
must affirm the denial of benefits." Mapes v. Chater, 82 F.3d 259, 262 (8th Cir.
With these guidelines in mind, we turn to the record in this case.
A. Treating Physician Evidence
According to Wiese, substantial evidence does not support a finding that she
can perform sedentary semi-skilled work. Wiese contends that the ALJ erroneously
disregarded selected opinions of, primarily, her treating psychiatrist, Dr. Doyle, and
her therapist, Judy Prochaska, without good cause and instead relied upon the opinion
of Dr. Ascheman, a medical expert who did not personally examine Wiese. The
Social Security Administration (SSA) regulations establish that an ALJ will evaluate
every medical opinion, regardless of its source, and sets forth how the ALJ weighs
medical opinions. According to 20 C.F.R. 404.1527(d)(2), the ALJ will give
controlling weight to a treating source's opinion if it is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in the record. Otherwise, the ALJ "consider[s] all of the
following factors in deciding the weight [to] give to any medical opinion": (1)
examining relationship, (2) treating relationship, (3) supportability, (4) consistency,
(5) specialization, and (6) other factors. 20 C.F.R. 404.1527(d).
Wiese claims that the ALJ "gave no weight whatsoever" to the opinions of Judy
Prochaska, a licensed social worker, and Dr. Doyle, a psychiatrist who treated Wiese
"for several years." However, the ALJ did not entirely disregard the opinions of these
treating sources, but rather found that the medical evidence as a whole did not support
a finding of disability. The ALJ gave greater weight to the testimony of the medical
expert, the claimant's self reports and the testimony of the claimant.
Wiese argues on appeal that there are no inconsistencies in this record regarding
the effects of her obesity on her mental state nor on the effects of restless leg
syndrome on her ability to sleep and overcome daytime sleepiness. Nor does this
record, she claims, reflect any inconsistencies regarding her "severely restricted"
social and daily living activities. Wiese points out that Dr. Rabinowitz noted that
Wiese's knees were swollen and limited in their range of motion, which Wiese claims
contradicts the ALJ's finding that she can stand for six hours in an eight-hour day.
She also highlights that the record is replete with evidence that she is depressed and
has low-self esteem, is limited in her daily activities that include no visitations, no
social activities and only occasional house cleaning. Dr. Doyle noted in September
2006 that Wiese was isolated, homebound, and not realistically employable. Wiese
herself testified that she has no friends and does not partake in any regular activities.
She paints a picture of herself as homebound and immobilized by her excessive
weight and low self-esteem. Specifically as to Dr. Doyle, who treated Wiese for two
years from March 2004 to July 2006, Wiese indicated two months before her onset
date of May 31, 2004, that she did feel better overall. She stresses, however, that her
condition only worsened thereafter and in September, she self-reported that she was
doing "really bad."
There are inconsistencies in this record, however. First, the discussion by Dr.
Rabinowitz about Wiese's knees and range of motion took place in 2001 during a
disability examination well before the relevant onset date. Further, there is no
diagnosis or suggested treatment plan in Dr. Rabinowitz's notes. Likewise, in 2005,
Dr. Doyle continued to monitor Wiese's self-esteem, anxiety, mood, and concentration
and ranked various areas of observation on his own scale of zero to ten, with zero
being "the worst in my life." Between June 2005 and August 2005 these rankings
revealed that in the areas of self-esteem, anxiety, mood and concentration, Dr. Doyle
ranked Wiese between 1.5 and 6, with only one instance of a 1.5 ranking, one ranking
at a 2.5, and nine instances of rankings at or above 4.5 on his scale. On the whole,
these assessments do not indicate the severity of symptoms and restrictions Wiese
highlights. Dr. Doyle did, however, establish Wiese's diagnoses for "major
depression, attention-deficit, hyperactivity disorder and morbid obesity." Dr. Doyle
diagnosed Wiese with ADD or ADHD from at least March 2004 through July 2006.
Further, in the summer of 2005, Dr. Doyle saw Wiese and detailed her
subjective self-reports. When Wiese complained of anger management issues and
personal stresses, Dr. Doyle objectively reported that her thought processes were
logical, sequential and goal-oriented. His objective assessment remained consistent
with very few abnormal findings and he persistently noted that Wiese functioned
within normal limits. And, Dr. Doyle further made notations in his treatment notes
regarding Wiese's educational achievement, her ability to care for her father, and her
desire and attempt to start a new home business, as well as develop romantic
relationships. Taken together, these treatment records are inconsistent with the
checklist forms Dr. Doyle completed regarding Wiese's work-related activities and
ability. On the forms, Dr. Doyle reported that she had "poor" or no ability to sustain
an ordinary routine, deal with stress and maintain regular attendance, among other
deficiencies. We recognize that the purposes of Dr. Doyle's treatment notes and his
assessment on the checklist forms differ, but even with these differences in mind,
inconsistencies abound. It would seem that someone with normal affect and cognition
intact would not function at the "poor or none" level in the many areas Dr. Doyle
indicated. The entries in the checklist form simply do not have foundation in the
medical signs and symptoms noted in his treatment records. The two analyses just
cannot be reconciled.
Judy Prochaska, a treating therapist Wiese highlights as being forgotten in the
ALJ's opinion, performed an initial assessment on Wiese in December 2003, before
the relevant onset date at issue here. This assessment also indicated Wiese's affect
was "congruent," her intellectual functioning average and her thought content logical
and relevant. As a result of this assessment, Prochaska recommended individual
therapy. It appears from the record that Wiese continued treatment with Prochaska
for approximately eight sessions with the same assessment. Wiese requested that
Prochaska close her case in January 2004. On appeal, Wiese fails to articulate what,
exactly, the ALJ failed to consider regarding Prochaska's treatment notes. The ALJ
addressed Prochaska's treatment notes, even though this treatment pre-dated the
relevant onset date, and acknowledged that these treatment notes tend to show merely
continued care and complaints. Prochaska's checklist form regarding Wiese's workrelated
activities and ability completed in January 2004 adds very little to the
discussion as Prochaska rates Wiese "good" and "fair" in all areas, only indicating that
Wiese might average four absences per month at work. This evidence in no way
detracts from the ALJ's assessment.
The ALJ was entitled to consider all of the evidence in the record.
Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005). In doing so, the ALJ
correctly pointed out certain inconsistencies in great detail. Given these
inconsistencies the ALJ could, and did, give greater weight to the opinion of Dr.
Ascheman who testified at the hearing and generally opined that Wiese had no
restrictions on activities of daily living, mild limits in maintaining social functioning
and some mild limitations of ability to maintain concentration, persistence or pace.
We emphasize that it is not for this panel to reweigh the evidence. That we
might be inclined to come out differently on this issue is of no accord. Quite simply,
reasonable minds could come to the same conclusion as the ALJ on this record.
B. Evidence of Other Diagnoses
Wiese also contends that the ALJ did not properly consider her obesity and how
her excessive weight contributed to or exacerbated her other physical or mental
ailmentsnamely a sleep disorder and depression. She concedes that the ALJ
considered her obesity in regard to her ability to stand but argues he did not properly
consider it as it affects her self-esteem, depression, fatigue, her ability to perform
work activities and her ability to be in public. We acknowledge that "obesity may
increase the severity of coexisting or related impairments to the extent that the
combination of impairments meets the requirements of a listing." SSR 02-1p. Here,
the ALJ did consider Wiese's obesity and how this impairment, in combination with
her other impairments, affected Wiese's limitations, not just her ability to stand.
Indeed, given Wiese's excessive weight, its presence pervades her treatment notes and
her own testimony. In doing so, the ALJ determined that her obesity did not
exacerbate the intensity, persistence, or limiting effects of her symptoms.
Additionally, Wiese claims the ALJ failed to mention particular diagnoses
entirely in the severity finding, namely restless leg syndrome and fibromyalgia, and
how they affect her ability to sleep and the effects of that lack of sleep on her ability
to perform tasks. Her basis for establishing a fibromyalgia diagnosis is based upon
notes written by Dr. Rabinowitz in November 2001 indicating that Wiese presented
with "probable chronic fibromyalgia." As to the restless leg syndrome, Wiese cites
a letter written by Dr. Thakkar in August 2002 after an examination of Wiese, wherein
he notes that Wiese complains of restless leg syndrome. He does not diagnose her
with such, however. And, later 2003 notes from the Davenport Clinic indicate
treatment for restless leg syndrome. Notwithstanding the fact that the medical
evidence regarding these two ailments predates the relevant onset date here, and there
is little medical evidence supporting these allegations after the onset date, the ALJ did
consider Wiese's self-claimed, persistent fatigue as well as her treatment for such, in
his findings, which is the effect Wiese now argues was not analyzed. Substantial
evidence supports the ultimate analysis.
2Polaski v. Heckler, 739 F.3d 1320 (8th Cir. 1984).
C. Wiese's Credibility
Reviewing the Polaski2 factors, Wiese claims that the ALJ failed to make a
"formal finding on credibility." She correctly states that an ALJ may not discount a
claimant's subjective complaints solely because the objective medical evidence does
not fully support them. SSR 96-7p; Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984). She refers again to her subjective complaints of social inadequacies, excessive
sleep during the day, fatigue, memory and concentration problems, grinding in her
knees, and morbid obesity, all of which the ALJ acknowledged but which Wiese
argues the ALJ fails to specifically discredit.
The ALJ specifically held that Wiese's "medically determinable impairments
could reasonably be expected to produce the alleged symptoms," but clearly stated that
in his opinion her "statements concerning the intensity, persistence and limiting effects
of these symptoms are not entirely credible." The ALJ then went on to apply the
correct legal standard for evaluating a claimant's subjective allegations, including
complaints of pain. See Polaski, 739 F.2d at 1322.
Even though the ALJ did not, as Wiese points out, discuss specifically which
of Wiese's allegations he found incredible, it is apparent from the opinion's entirety
that the inconsistencies between the medical evidence, Wiese's own claims, and
Wiese's daily activities form the basis of the ALJ's finding. Indeed, the ALJ wrote
nearly four full pages of analysis regarding the consistency between Wiese's selfreports
contained in the record, her treating physicians' notes and assessments, the
medical evidence and the hearing testimony. In doing so, the ALJ provided a
thorough analysis of the inconsistencies he noted in the record, and those
inconsistencies are supported by the record. See SSR 96-7p (discussing the two-step
process for evaluating symptoms and directing that the ALJ make a finding on the
credibility of a claimant's statements based on a consideration of the entire case
record, including medical signs and laboratory findings as well as the individual's own
statements). Based on all of these findings, the ALJ established the stated RFC, which
we find is supported by substantial evidence.
We agree with the ALJ's conclusion in this case that, while severe, Wiese's
impairments are not so limiting that she is unable to work. For the reasons stated
herein, we affirm.


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