Wagner v. Astrue

499 F.3d 842, 2007 U.S. App. LEXIS 20188, 2007 WL 2403743
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 24, 2007
Docket06-3580
StatusPublished
Cited by372 cases

This text of 499 F.3d 842 (Wagner 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
Wagner v. Astrue, 499 F.3d 842, 2007 U.S. App. LEXIS 20188, 2007 WL 2403743 (8th Cir. 2007).

Opinion

SMITH, Circuit Judge.

Walter Wagner appeals the district court’s 1 order affirming the Administra *845 tive Law Judge’s (ALJ) denial of Wagner’s application for Social Security disability insurance benefits under 42 U.S.C. § 405(g). We affirm.

I. Background

Wagner, a 52-year-old male, worked as the chief of police in Ossian, Iowa, from 1977 until January 1, 2003. In November 2000, after suffering a knee injury, Wagner gained 40 pounds within one month. He was diagnosed with massive edema. Wagner was also diagnosed with nephrotic syndrome (caused by diabetic nephropathy secondary to poorly controlled diabetes), hypertension, coronary artery disease, Type II diabetes, and hyperlipidemia. During that same month, Wagner underwent quadruple bypass surgery. After leaving the hospital, Wagner returned to his job as chief of police. Throughout this time period, Dr. Gregory N. Tjossem, Wagner’s family physician, monitored his health.

In January 2003, Dr. David Bakken, M.D., evaluated Wagner and diagnosed his shoulder pain as impingement syndrome. Dr. Bakken noted that Wagner’s condition improved with the prescription drug Tora-dol. Thereafter, Dr. Robert P. Frantz, a cardiologist, found that Wagner’s shoulder pain was non-cardiac. Wagner then visited Dr. Laurence F. Fuortes, M.D., Professor of Division of Occupational Medicine and Environmental Health at the University of Iowa Hospitals and Clinics, who stated that Wagner was “unable to perform the full duties of a police officer.”

On February 20, 2003, Wagner applied for Title II Social Security benefits and Title XVI supplemental security income (SSI) benefits, alleging an inability to work since January 31, 2003, due to coronary artery disease, diabetes Type II, hypertension, impingement syndrome of the left shoulder, left knee pain from degenerative join disease, and obesity.

On May 21, 2003, Iowa state agency physician Dr. Richard Hornberger, a medical consultant for the Disability Determination Services Bureau, determined that Wagner could stand for at least two hours in an eight-hour workday, sit for approximately six hours in an eight-hour workday, lift up to 20 pounds occasionally and 10 pounds frequently, and perform unlimited pushing and pulling. Dr. Hornberger found Wagner gave consistent and credible responses.

On June 26, 2003, the Social Security Administration (SSA) denied Wagner’s application for Social Security and SSI benefits. On July 23, 2003, Wagner filed a request for reconsideration.

On October 8, 2003, the SSA requested that Dr. Tjossem examine and evaluate Wagner. Dr. Tjossem diagnosed Wagner with coronary artery disease, status post coronary artery bypass grafts times four, and Type II diabetes complicated by ne-phropathy, obesity, and left knee pain from degenerative joint disease. Dr. Tjossem opined that Wagner should not lift over 40 pounds more than a couple of times per day, should stand no more than 30 minutes before resting, and completely avoid stooping, climbing, kneeling, and crawling. He also stated that Wagner was currently unable to perform his duties as a police officer and was therefore limited to office or desk work.

On December 16, 2003, Iowa state agency physician Dr. Gary J. Cromer, a medical consultant for the Disability Determination Services Bureau, wrote that Wagner could stand at least two hours in an eight-hour workday, sit approximately six hours in an eight-hour workday, lift 35 pounds occasionally and 20 pounds frequently, and perform unlimited pushing and pulling. Dr. Cromer identified three inconsistencies in Wagner’s subjective allegations of pain: (1) Wagner failed to *846 pursue ongoing evaluation and treatment for conditions that he alleged were disabling; (2) Wagner took no pain medications for conditions that he alleged were disabling; and (3) Wagner’s subjective report to the Disability Determination Services Bureau was much more severe than the symptoms that he reported to his treating physicians. Dr. Cromer stated that these inconsistencies “eroded the credibility of [Wagner’s] subjective allegations.” He noted that on January 23, 2003, Wagner did not seek any further treatment for his shoulder pain because such pain had “significantly improved.” Additionally, he noted that in October 2003, Wagner alleged chronic knee pain and left arm pain but did not take any pain medication. During that same year, Wagner also reported that he could walk for one-half mile to one mile, stand for 40 minutes, and lift 40 pounds. Dr. Cromer concluded that the opinion evidence was “symptom-based and not supported by objective findings.”

As a result of Dr. Cromer’s evaluation, the SSA reconsidered Wagner’s case, concluded that its initial determination was correct, and again denied Wagner’s claim. On February 5, 2004, Wagner requested a hearing before the ALJ.

On November 5, 2004, Dr. Tjossem opined that Wagner was completely disabled and could not work eight-hour days and 40-hour weeks.

In January 2005, Wagner’s lawyer sent Dr. Tjossem a list of questions. In response to those questions, Dr. Tjossem wrote that Wagner suffered from coronary artery disease, poorly controlled diabetes, arthritis, impingement syndrome of the left shoulder, and morbid obesity. He also wrote that Wagner could not return to his previous occupation or perform a job with physical requirements. He imposed this limitation mainly because Wagner could only stand and walk for two hours out of an eight-hour day; could not climb, squat, or kneel; and could not lift anything over 40 pounds.

On February 14, 2005, the ALJ held a hearing. At that hearing, vocational expert Carmen Mitchell testified that Wagner could perform his past relevant work as chief of police, as generally performed in the national economy, but not as Wagner performed the job in the small town of Ossian, Iowa.

The ALJ determined that Wagner was not disabled and was not entitled to SSI benefits. The ALJ found that Wagner had the following impairments: coronary artery disease, impingement syndrome of the left shoulder, and Type II diabetes. The ALJ concluded that Wagner’s impairments were not equivalent to one of the listed impairments and also determined that Wagner was able to perform his past relevant work. The ALJ defined Wagner’s residual functional capacity (RFC) as follows:

lifting 20 pounds occasionally and 10 pounds frequently; sitting up to 90 minutes at a time for a total of 6 hours in an 8-hour workday; standing 30 minutes at a time; occasionally stooping, balancing, kneeling, crouching, crawling and climbing stairs but never climbing ladders; occasionally reaching overhead with the left extremity and in all directions; working in environments with frequent exposure to heat, humidity, dust and fumes. Additionally the claimant would require consideration for limited but fairly good vision in the right eye.

Wagner requested review of the ALJ’s decision, and the SSA Appeals Council denied Wagner’s request for review. Wagner then filed a complaint in federal district court, seeking judicial review of the Commissioner of Social Security’s decision, arguing that: the ALJ (1) improperly disregarded Dr.

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Bluebook (online)
499 F.3d 842, 2007 U.S. App. LEXIS 20188, 2007 WL 2403743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-astrue-ca8-2007.