Bentley v. Shalala

52 F.3d 784, 1995 U.S. App. LEXIS 9266, 1995 WL 234963
CourtCourt of Appeals for the Eighth Circuit
DecidedApril 24, 1995
DocketNo. 94-2553
StatusPublished
Cited by137 cases

This text of 52 F.3d 784 (Bentley v. Shalala) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bentley v. Shalala, 52 F.3d 784, 1995 U.S. App. LEXIS 9266, 1995 WL 234963 (8th Cir. 1995).

Opinions

WOLLMAN, Circuit Judge.

In this Social Security disability case, Michael Bentley alleges he has been disabled since August 22, 1988, due to a back injury sustained on the job in April, 1988. Bentley filed for disability and supplemental security benefits on March 27, 1990, after his company disability payments ended and he was discharged. The Administrative Law Judge (ALJ) denied benefits, the Appeals Council denied review, and the district court1 affirmed. We likewise affirm.

I

The Secretary concedes that Bentley cannot return to his past work, which required substantial physical exertion. Therefore, the burden is on the Secretary to show that there are other jobs Bentley can do. E.g., Hajek v. Shalala, 30 F.3d 89, 93 (8th Cir.1994). As to Bentley’s physical limitations, the ALJ found that Bentley could lift 35 pounds once or 10 pounds repeatedly; that Bentley should not sit, stand or walk for more than 30 minutes at a stretch; and that Bentley could not do repeated bending or stooping. In assessing Bentley’s mental limitations, the ALJ held that Bentley would not be able to do complex work or work requiring close attention to detail, but was otherwise fit for work. Taking these limitations into account, the ALJ decided that there were numerous jobs Bentley could perform.

Bentley contends that the ALJ erred in determining his physical and mental limitations. Bentley makes essentially two arguments. First, he argues that he does not retain the physical capacity to do any work; next, Bentley argues that even if he could physically handle work, his depression, anger, and inability to take instructions or get along with eoworkers render him disabled.

Bentley’s argument on physical capacity centers on his claim that he cannot bend or stoop. There is some evidence for this in the record. On January 12, 1989, Dr. Scott C. McCuskey, an orthopedic specialist who has treated Bentley, wrote that Bentley could do “no heavy lifting, bending or stooping activities.” On August 15,1989, Bentley’s treating physician, Dr. Paulette Lynn, stated that he should “avoid bending, stooping.” More than two years later, Dr. Lynn wrote that Bentley “should not have a job where he is required to stoop, bend, or squat.”

However, there also exists substantial medical evidence showing that Bentley could handle some stooping and bending. For instance, the same Dr. McCuskey on August 22, 1988 (Bentley’s claimed date of disability onset) reported that Bentley’s “lateral bending is good,” and described his forward flex-ion as “a little bit tight.” Dr. McCuskey made a similar notation on September 16, 1988, that Bentley “has fairly good lateral bending and he is able to forward flex well.” On June 8, 1992, examining physician Dr. D.K. Mokhtar noted that Bentley “has no difficulty with occasional stooping, climbing, kneeling and crawling.” Dr. Mokhtar’s examination showed that Bentley could bend forward 55 degrees (with normal being 90 degrees). (Unfortunately, two residual functional capacity assessments, one on June 29, 1990, and the second on October 22,1990, did not establish Bentley’s ability to bend or stoop.)

In sum, we have one treating physician, Dr. Lynn, who has at least once stated that Bentley could neither bend nor stoop. Another treating physician, Dr. McCuskey, has made conflicting statements on Bentley’s ability to bend and stoop. Examining physician Dr. Mokhtar reported some bending ability and concluded that Bentley could stoop occasionally.

It is the ALJ’s function to resolve conflicts among “the various treating and examining physicians.” Cabrnoch v. Bowen, 881 F.2d 561, 564 (8th Cir.1989); see Richardson v. Perales, 402 U.S. 389, 402-03, 91 S.Ct. 1420, 1427-28, 28 L.Ed.2d 842 (1971). While the opinions of treating physicians are [786]*786entitled to special weight, they do not automatically control, since the record must be evaluated as a whole. Campbell v. Bowen, 800 F.2d 1247, 1250 (4th Cir.1986). Here, of course, the treating physician evidence is itself inconsistent.

We conclude that substantial evidence exists in the record supporting the ALJ’s decision to reject Bentley’s argument that he could not bend or stoop and is precluded from work by purely physical limitations. The most comprehensive examination of Bentley’s back problems was made in May 1990, by a multi-disciplinary team at the University of Iowa’s Spine Diagnostic and Treatment Center. The Center’s final analysis was “that there is indeed some degenerative joint disease present, as well as a small central disc protrusion at the L5-S1 disc space. However, we are convinced at this time that [Bentley’s] situation is absolutely stable ... and that [Bentley’s] spine is totally solid, stable and healed from all previous injury.” This is persuasive evidence that Bentley’s physical limitations are based more or less exclusively on pain.

Pain alone can cause physical disability, Johnson v. Secretary of HHS, 872 F.2d 810, 812 (8th Cir.1989), but pain is largely subjective; thus, in evaluating pain, ALJs must rely on circumstantial evidence. See Polaski v. Heckler, 751 F.2d 943, 948-50 (8th Cir.1984) (subsequent history omitted). In concluding that Bentley’s pain is not disabling, the ALJ here examined a host of such factors; we focus on the two that most clearly show the ALJ’s decision to be based on substantial evidence.

First, the ALJ relied on the fact that the plaintiff at the time of the hearing was not taking prescription pain medicine and was not treated by doctors for a year during his claimed disability period. The absence of prescription medicine and the failure to seek medical treatment for such a long time during a claimed period of disability tends to indicate tolerable pain. See Walker v. Shalala, 993 F.2d 630, 631-32 (8th Cir.1993); Bowman v. Railroad Retirement Board, 952 F.2d 207, 210-11 (8th Cir.1991).

Second, the record shows that Bentley not only tried to return to lighter work with his former company, but also applied for jobs both related and unrelated to his previous work during his claimed disability period. Again, this record of contemplating work indicates Bentley did not view his pain as disabling. See Barrett v. Shalala, 38 F.3d 1019, 1024 (8th Cir.1994) (claimant’s statements that he was seeking work inconsistent with disability). (Bentley’s case must of course be distinguished from situations where the medical evidence uniformly supports a finding of disability; in such cases an unsuccessful work search may even reinforce a disability claim. Walston v.

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Bluebook (online)
52 F.3d 784, 1995 U.S. App. LEXIS 9266, 1995 WL 234963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bentley-v-shalala-ca8-1995.