Vossen v. Astrue

612 F.3d 1011, 2010 U.S. App. LEXIS 14584, 2010 WL 2790934
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 16, 2010
Docket09-1985
StatusPublished
Cited by308 cases

This text of 612 F.3d 1011 (Vossen v. Astrue) 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
Vossen v. Astrue, 612 F.3d 1011, 2010 U.S. App. LEXIS 14584, 2010 WL 2790934 (8th Cir. 2010).

Opinion

BRIGHT, Circuit Judge.

Appellant Timothy C. Vossen challenges an administrative law judge’s (ALJ) determination that he is ineligible for social security disability benefits. Vossen argues the ALJ erred (1) in concluding Vossen’s impairments did not meet or equal listing 1.04A; (2) in declining to give controlling weight to Vossen’s treating physician; (3) by not seeking additional information from a consulting physician; and (4) by improperly evaluating his credibility. We reverse and remand.

I. Background

Vossen suffered injuries in a July 2002 motor vehicle accident in which both of his knees went through the dash of his automobile. In September 2002 he applied for disability benefits. This application was denied, and Vossen filed a second application. After his second application was denied reconsideration, Vossen timely requested a hearing and review by an ALJ.

At the time of the June 2005 administrative hearing, Vossen was married, had an eleven-year-old son, and had not worked since the accident. Vossen does not have a high school diploma or a GED. He worked primarily as a construction laborer in the fifteen years before the automobile accident. At the hearing, the ALJ heard testimony from Vossen, a non-examining medical expert, and a vocational expert. The ALJ also received medical records from Vossen’s treating physicians, his chiropractor, and a report from the Commissioner’s consultative physician who examined Vossen for the purpose of determining his residual functional capacity (RFC). Vossen’s treating physicians believed him unable to work.

The ALJ gave the greatest weight to the opinions of the non-examining medical expert, Dr. Steiner, who disagreed with the opinions of Vossen’s treating physicians and with the consultative physician’s assessment of Vossen’s RFC.

Dr. Anderson treated Vossen for almost three years (September 2002 through July 2005) during which he opined on several occasions that Vossen was “disabled” and could not engage in substantial gainful employment. The ALJ acknowledged that ordinarily the opinion of a claimant’s treating physician is entitled to controlling weight. But the ALJ determined that Dr. *1014 Anderson’s opinions were not entitled to controlling weight because the opinions were inconsistent with Vossen’s overall course of medical treatment and because Dr. Steiner pointed out conflicts he perceived in the medical record.

Dr. Holte is an orthopedic spine surgeon who treated Vossen after a referral from Dr. Anderson. In March 2004, after over one year of treating Vossen, Dr. Holte concluded “[i]t is my opinion that Mr. Vossen is totally disabled. He is probably totally permanently disabled.” The ALJ declined to give great weight to Dr. Holte’s opinion, finding it based primarily on Vossen’s subjective assertions of pain rather than objective medical evidence.

The ALJ also considered the opinion of Vossen’s treating chiropractor, Dr. Copp, who reported that Vossen was disabled since the automobile accident. But because Dr. Copp is a chiropractor, the ALJ declined to give Dr. Copp’s opinion weight as a medical opinion. However, the ALJ considered it as “other source” evidence under 20 C.F.R. § 404.1513.

Finally, the ALJ gave less weight to the opinion of the Commissioner’s own consultative physician, Dr. Johnson, who examined Vossen in March 2005. Dr. Johnson concluded Vossen “cannot stand or walk for long periods.” Dr. Johnson limited Vossen to sitting less than six hours per day and standing less than two hours per day.

The ALJ, however, adopted the opinion of Dr. Steiner, who testified that Vossen was capable of sitting six hours in an eight-hour day and capable of standing two hours in an eight-hour day. The ALJ did so because the second page of Dr. Johnson’s report containing the above-described limitations was not signed and appeared to have been submitted after his original statement. In other words, the ALJ questioned the authenticity of Dr. Johnson’s opinion regarding Vossen’s ability to sit and stand during a normal workday.

Following the hearing, the ALJ issued a decision following the five-step process for evaluating disability claims set forth in 20 C.F.R. § 404.1520(a). At the first step, the ALJ determined that Vossen had not engaged in substantial gainful activity since his alleged disability onset date (the 2002 automobile accident). At the second step, the ALJ determined that Vossen had several severe impairments: chronic pain syndrome resulting from the motor vehicle accident; cervical strain/sprain; degenerative disc disease of the lumbar spine; thoracic outlet syndrome; degenerative disc disease of the right knee; chronic MCL injury of the right knee; and muscular contracture headache. The ALJ found that these conditions were medically established and would more than minimally affect Vossen’s ability to work.

But at the third step, the ALJ determined that Vossen’s severe impairments did not meet or equal a listed impairment. 2 The ALJ then considered Vossen’s RFC. Based on the testimony of Dr. Steiner, and the testimony of the vocational expert, the ALJ concluded that Vossen could not perform his past relevant work as a construction laborer but could perform other substantial gainful activity.

Accordingly, the ALJ found Vossen not disabled. Vossen sought judicial review of the ALJ’s determination, and this appeal follows the district court’s grant of summary judgment in favor of the Commissioner.

*1015 II. Discussion

“Our role on review is to determine whether the Commissioner’s findings are supported by substantial evidence on the record as a whole.” Singh v. Apfel, 222 F.3d 448, 451 (8th Cir.2000). We consider evidence that detracts from the Commissioner’s decision as well as evidence that supports it. Id. Substantial evidence is less than a preponderance, but enough that a reasonable mind would find it adequate to support the Commissioner’s decision. Id. ‘We may not reverse the Commissioner’s decision merely because substantial evidence exists in the record that would have supported a contrary outcome.” Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.2000).

A. Listing 1.04A

Vossen argues that the ALJ misapplied the “treating physician rule” and improperly deferred to the opinion of Dr. Steiner. These errors, contends Vossen, resulted in the improper conclusion that Vossen’s impairments did not meet or equal listed impairment 1.04A. We disagree.

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Bluebook (online)
612 F.3d 1011, 2010 U.S. App. LEXIS 14584, 2010 WL 2790934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vossen-v-astrue-ca8-2010.