Joe F. BARRETT, Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Appellee

38 F.3d 1019, 1994 U.S. App. LEXIS 29918, 1994 WL 587046
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 27, 1994
Docket94-1208
StatusPublished
Cited by160 cases

This text of 38 F.3d 1019 (Joe F. BARRETT, Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Appellee) 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
Joe F. BARRETT, Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Appellee, 38 F.3d 1019, 1994 U.S. App. LEXIS 29918, 1994 WL 587046 (8th Cir. 1994).

Opinion

MAGILL, Circuit Judge.

Joe F. Barrett appeals from the district court 1 order granting summary judgment in favor of the Secretary of Health and Human Services in an action brought by Barrett challenging the Secretary’s denial of disability benefits under 42 U.S.C. § 401 and §§ 1381-1383 (1993). The Secretary based the denial on findings that Barrett had no severe impairment and was capable of returning to his past relevant work. We affirm.

I. BACKGROUND

Barrett applied for disability benefits on April 15, 1991, alleging that he had been disabled since December 22,1990, because of back pain and migraine headaches. The Secretary denied Barrett’s application and, on November 29, 1991, an administrative law judge (ALJ) denied Barrett’s claim following a hearing. The appeals council denied Barrett’s request for review and Barrett then sought review in the district court pursuant to 42 U.S.C. § 405(g) (1993). The court referred the matter to the United States magistrate judge, who filed a report recommending that the Secretary’s motion for summary judgment be granted and that Barrett’s motion for summary judgment be denied. On October 29, 1993, the district court entered an order adopting the magistrate judge’s report and recommendation and granting the Secretary’s motion.

Barrett was fifty-two years old at the time of the hearing, and had an eighth grade *1022 education. He worked as a truck driver for more than twenty years. His last two jobs before he applied for disability were with Ryder Rental, which required no loading or unloading, and a part-time job driving a dump truck. Barrett lost the job with Ryder when Ryder lost its contract, and quit the dump-truck driving job because of back and head pain. Thereafter, he applied for and received unemployment benefits of $150 per week.

At the hearing before the ALJ, Barrett testified that he had had back problems since the 1970s, and.had constant severe back pain for which he took pain pills. The pills sometimes made him feel “drugged up.” He stated that for the previous six months, he had had migraine headaches two to three times a week, and that the only way he could relieve, the headaches was to lie down. Barrett claimed that he could only stand for ten to fifteen minutes, sit for thirty to sixty minutes, and walk fifteen to twenty-five steps. He spent his days watching television or in bed, and had to give up yard work and his hobbies of fishing and hunting because of the back pain. He testified that once or twice a week, he would drive four miles into town, and, once every week or two, twelve .miles to visit his mother.

. Barrett had been hospitalized three times for treatment of back pain: in April 1979, when he was diagnosed as having acute lum-bosacral strain and acute left sciatic neuritis; in September 1981, when he was diagnosed with scoliosis of the axial spine with levoro-toscoliosis of the lumbar spine, spasms in the lumbar area, joint space narrowing and progressive degenerative osteophytie lipping of the anterior vertebral bodies of the lumbar spine; and in July 1982, when he was diagnosed as having an acute low back strain. He was also treated by Robert S. Myers, D.O., whom he saw three times after the alleged onset date of December 22, 1990. The doctor prescribed muscle relaxants and pain medication 2 and a back treatment on a traction table, but did not refer Barrett for physical therapy or additional evaluation or testing. He submitted disability claim forms for Barrett indicating that Barrett had been disabled since April 1991 due to low back pain and migraine headaches, but did not provide a specific residual functional capacity assessment.

When Barrett was examined by Dr. Allen Northern at the request of the state agency in May 1991, the doctor reported restricted back motion, degenerative joint disease and sacroiliac strain; X-rays indicated rotosco-liosis and disc space narrowing, and the radiologist recommended a CT scan.

The ALJ found that the medical evidence established that Barrett had scoliosis of the dorsal spine and a history of migraines, but that he did not have an impairment or combination of impairments listed in or equal medically to one listed in Appendix 1, Subpart P, Regulations No. 4. The ALJ further found that Barrett’s claims of incapacitating pain were not credible.

The ALJ concluded that Barrett was precluded from strenuous work activities and could not perform work that involved lifting more than twenty pounds, but had no limitation on performing light work, including his past relevant activity such as the job with Ryder.

II. DISCUSSION

We must affirm if substantial evidence on the record as a whole supports the Secretary’s decision. Russell v. Sullivan, 950 F.2d 542, 544 (8th Cir.1991). We must consider evidence that detracts from the decision as well as evidence that supports it, but may not reverse the decision “merely because substantial evidence would have supported an opposite decision.” Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.1993) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.1984)). Although the ALJ may not reject subjective complaints solely because of a lack of objective medical evidence on the record as a whole, the absence of objective medical evidence which supports the degree of severity is a factor to be considered by the ALJ. Beeler v. Bowen, 833 F.2d 124, 127 (8th Cir.1987); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984) (subsequent history omitted).

*1023 We find that the Secretary’s decision is supported by substantial evidence on the record as a whole. Barrett’s first argument, that the ALJ relied on isolated remarks in the medical reports, is not supported by the record. The ALJ considered and discussed in his decision the medical reports submitted by Barrett, the diagnoses of Barrett’s back complaints, treatments prescribed for Barrett, Barrett’s hospitalizations, and Barrett’s subjective claims of pain. He also considered Dr. Myers’ opinion that Barrett had been disabled since April 1991. Although the opinion of the treating physician is to be accorded a high degree of deference by the ALJ, this deference should be limited if the treating physician’s opinion consists only of conelusory' statements. Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir.1991). The ALJ discussed Dr.

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Bluebook (online)
38 F.3d 1019, 1994 U.S. App. LEXIS 29918, 1994 WL 587046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joe-f-barrett-appellant-v-donna-e-shalala-secretary-of-health-and-ca8-1994.