Disability Law Blog

Vester v. Barnhart, No. 04-2140, __F.3d__ (8th Cir. July 27, 2005)

The Eighth Circuit, in an opinion by Circuit Judge Steven M. Colloton, affirms a denial of an SSI only claim based on depression, bipolar disorder, personality disorder and chronic alcohol abuse. The claim was originally filed in September 1992 and had been to the district court three times (remanded twice, then affirmed the third time around). The only issue presented for review was whether Vester's drug and alcohol abuse was a contributing factor material to Vester's disability. The Court raised doubts that this issue is a medical question, requiring medical evidence to resolve; however, assuming that medical evidence is needed to resolve it, a consultative psychiatrist's opinion that Vester "[m]ay improve with more time sober and taking mood stabilizing medication" was adequate to support the ALJ's conclusion.

Circuit Judge Heaney, in a cogent dissent, disagreed with the majority that "an ALJ is free to speculate regarding the complex interaction of mental illness and substance abuse." He wrote:

"If an assessment of disability based on mental illness requires some supporting evidence from a medical professional, it defies logic to conclude that the even more difficult task of determining a claimant’s hypothetical abilities in the absence of alcohol or substance abuse should be left to the ALJ. . . . The majority suggests that the ALJ’s conclusion is sufficiently supported by Dr. Reid’s 1997 evaluation of Vester. This report, however, fails entirely to distinguish between permanent impairments or deficits caused by Vester’s long-term alcohol abuse, and conditions that would in fact improve with continued sobriety. . . . Instead of focusing on the medical evidence in the record, the ALJ relied on evidence of Vester's community service assignments to conclude that she was able to work when not using alcohol. Vester's successful completion of her short-term community service assignment, while she was receiving substantial support and attention from her caseworker, does not constitute substantial evidence that Vester is not disabled.

Oral argument is available on the circuit's website but I've found no way to link directly to it.

Desselle v. Barnhart, No. 04-1241, __F.3d__ (8th Cir. July 20, 2005)

The Eighth Circuit, in an opinion by Circuit Judge Morris S. Arnold, affirms a denial of disabilty benefits for a self-employed claimant, finding that the ALJ correctly denied the claim based on the lack of necessary quarters of coverage. Although not mentioned in the opinion, the Court granted the Commissioner's request for rehearing after originally remanding the claim in April 2005. (That decision can be found here.)

This decision finds that substantial evidence supported the ALJ's determination that Desselle did not produce satisfactory evidence to warrant amending his 1993 tax returns.

Tellez v. Barnhart, No. 04-1739 (8th Cir. April 8, 2005)

The Eighth Circuit, in a decision by Circuit Judge Clarence A. Beam, affirms a denial of SSI benefits. The ALJ was unpersuaded by opinions from Tellez's treating psychiatrist and nurse practitioner that she had marked limitations in her ability to relate to people and maintain regular work attendance, among other things:

The ALJ found Tellez's actual work history and work assessments from Tellez's employers quite persuasive in his ultimate decision to deny benefits. The record contains statements from at least three employers, two of whom praised Tellez's work and noted her punctuality and the quality of her work. Thus, the reports of her actual behavior in the workplace were clearly at odds with the extreme limitations described by her psychiatrist and nurse practitioner. Given that discrepancy, substantial evidence supports the ALJ's determination not to afford controlling weight to those opinions.

And while the Commissioner's regulations require consideration of third-party evidence regarding limitations, this evidence frequently is ignored in ALJ decisions. Tellez argued that it had been in this case as well but the Court disagreed:  [T]he ALJ did not ignore the testimony and reports of Tellez's other witnesses, but rather considered those opinions and held that the testimony 'was credible but did not show that the claimant's impairments were so limiting as to
render her disabled.'"

For a different view of the case, read the plaintiff's brief.

Goad v. Barnhart, No. 04-1363, __F.3d__ (8th Cir., Feb. 17, 2005)

The Eighth Circuit, in an opinion by Circuit Judge Michael J. Melloy, vacates and remands a denial of Equal Access to Justice Act (EAJA) fees in a Social Security disability case to determine if "the Commissioner's position regarding the initial denial of benefits was substantially justified." Interesting facts in brief: ALJ denies claim. Claimant appeals and eventually arrives in District Court. Claimant files new claim, alleging onset the day after date on ALJ decision, and second claim is approved. District Court remands first case without knowledge of the second.

Claimant files for EAJA fees and costs. Time goes by. Before MJ awards EAJA fees, claimant abandons first claim (hearing notice says that the ALJ will consider the period covered by second successful claim). MJ approves fees.

Commissioner files objections and notifies District Court ex parte that first claim had been withdrawn, attaching copy of ALJ decision. District Court denies EAJA fees and costs: "“[a] plaintiff who failed to supply the Court with information relevant to the matter pending cannot later be heard to complain of a violation of due process rights when the Court is made aware of such information. [Mr. Goad’s] failure to supply known and relevant information in a timely fashion waives his opportunity to explain that information at a later date.” Claimant appeals.

The Court says the District Court abused its discretion:

During oral arguments in this case, the Commissioner conceded the impropriety of her ex parte communication concerning Mr. Goad’s withdrawn claim. As noted above, withdrawal of the remanded claim may or may not have been related to the merits of the Commissioner’s position in the prior litigation. We believe then, that at a minimum, reliance on the ex parte communication improperly deprived Mr. Goad of the opportunity to explain his reasons for withdrawal. Also, we note that because it was the Commissioner’s burden to prove substantial justification, Mr. Goad was under no duty to supplement the record by notifying the district court of the outcome on remand. Accordingly, his failure to do so cannot serve as a waiver of his right to rebut evidence presented by the Commissioner.

The case is remanded to determine the issue of substantial justification.

Oral argument audiofile is available on the 8th Circuit website.

Garza v. Barnhart, No. 04-2123, __F.3d__ (8th Cir., Feb. 15, 2005)

The Eighth Circuit, in a per curiam opinion, finds that a claimant with fibromyalgia (FM) was not disabled prior to May 1999, her date last insured, but that the ALJ's "misunderstanding" about fibromyalgia warranted a remand to consider whether FM, first diagnosed in May 2000, was a severe impariment and, if so, whether it was disabling:

In summarizing the medical evidence, the ALJ mentioned Dr. Rooney's May 2000 fibromyalgia diagnosis, but the ALJ did not discuss specifically other physicians' subsequent references to fibromyalgia; and the ALJ specifically stated that Garza's symptoms of muscle aches and pains had not been substantiated by objective medical testing. We thus agree with Garza that the record indicates the ALJ misunderstood fibromyalgia. See Forehand, 364 F.3d at 987 (noting (1) fibromyalgia is a chronic condition, usually diagnosed after eliminating other conditions; (2) no confirming diagnostic tests exist; and (3) our court has long recognized fibromyalgia might be disabling); Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir. 1996) (finding of no severity is limited to medical impairment(s) that would have no more than minimal effect on claimants ability to work).

The Court affirmed the ALJ's credibility finding, his handling of the opinions of a treating social worker and a reviewing psychologist, and his discounting of a treating physician's assessment of physical limitations.

Chunn v. Barnhart, No. 04-2340, __F.3d__ (8th Cir. Feb. 11, 2005)

The Eighth Circuit, in an opinion by Circuit Judge Diana E. Murphy, reverses and remands a step 5 denial of a concurrent claim for benefits. Ms. Chunn alleged that she met listing 12.05C because she is mentally retarded and has additional and significant work-related limitations caused by sinus problems, allergies and asthma. A consultative examiner found that she had a verbal IQ of 54, performance IQ of 48 and full scale IQ of 46 but that the test results probably underestimated her intellectual functioning since she didn't appeared very well-motivated. The psychologist concluded that her scores probably fell in the mild retardation range (55 to 70 per the DSM-IV) and that an IQ at the low end of the mild mental retardation range was consistent with her assessment of Ms. Chunn's adaptive functioning.

The ALJ did not address 12.05C at step 3; rather, he characterized Ms. Chunn's limitations as "mild-borderline retardation" or "borderline intellectual functioning."

. . . the ALJ did not explicitly reject the psychologist's opinion, much less explain why her opinion should not be relied on. The Commissioner defends the ALJ's substitution of his lay opinion for that of the expert by arguing that he had to look at Chunn's activities to determine her mental capacity because she had not given her best efforts when taking the tests. This argument does not adequately consider the fact that Dr. Ziolkow also took Chunn's activities into account when forming her expert opinion. She might not have known about Chunn's past work at the factory, but that alone would not completely undercut an opinion which considered many aspects of Chunn's adaptive functioning. Moreover, the ALJ's decision fails to explain how Chunn's activities and behaviors are inconsistent with Dr. Ziolkow's characterization of her mental capacity.

Since the ALJ failed to support his step 3 finding, the case is remanded for further proceedings.

Raney v. Barnhart, No. 04-2061, __F.3d__ (8th Cir. Feb. 10, 2005)

The Eighth Circuit, in a decision by Circuit Judge William J. Riley, affirms a denial of SSI benefits for a 47 year old with no past relevant work experience and a variety of physical and mental problems including, degenerative disc disease, low back pain, diabetes, carpal tunnel syndrome, morbid obesity, rheumatoid arthritis, peripheral vascular disease, COPD, asthma, depression, anxiety and panic attacks.

Where an acceptable medical source opined that the claimant "exhibited marked and extreme areas of limitations showing disability," but where the same source wrote in her treatment notes just days before this assessment that the claimant was "improved" and "fair," the treatment notes "are inconsistent with the RFC form and Raney's claims of disability." The Court concludes that the ALJ properly evaluated the acceptable medical source's opinion.

The Court also rejected claims that the ALJ did not properly assess Raney's RFC or properly evaluate her credibility or consider her impairments in combination. The Court noted that on good days, Raney is able to walk without a cane and her problems can be controlled with diet and medication. None of her doctors said she was disabled, and the ALJ said he considered all Raney's impairments in combination; therefore, he did.

For a different perspective on this case, read the appellant's brief.

Guilliams v. Barnhart, __F.3d__, No. 04-1113 (8th Cir. Jan. 4, 2005)

The Eighth Circuit, in an opinion by Circuit Judge Steven M. Colloton, affirms the denial of a concurrent claim for benefits at step 5 of the sequential evaluation process. The Court found that the ALJ properly discredited Guilliams's complaints of pain since they were inconsistent with substantial medical evidence and his activities of daily living. The Court also determined that the ALJ's RFC finding was supported by the evidence. Finally, although a hypothetical question's initial assumption that Guilliams could do light work was problematic, it was not fatal because the ALJ "otherwise precsiely set out the claimant's physical and mental impairments."

Ellis v. Barnhart, __ F.3d __, No. 03-3945 (8th Cir., Jan. 3, 2005)

The Eighth Circuit, in a 2-1 decision authored by Circuit Judge Steven M. Colloton, affirms a step 5 denial of SSI benefits for a man alleging chronic back pain due to multiple injuries. The Court found that the ALJ's rejection of the treating physician's opinion that Ellis could sit only four hours per day was proper, that his rejection of Ellis's testimony of incapacitating pain was proper where substantial evidence did not support that testimony, and that VE testimony was unnecessary where Ellis's pain did not diminish his ability to perform afull range of sedentary work.

In dissent, Judge Heaney concluded that the doctor's opinion was well-supported by the record and not inconsistent with other substantial evidence. He recounted Ellis's extensive medical history. "To summarize, Ellis has been involved in five serious car accidents in which he sustained injuries including fractures of both femurs, a fracture of the left radius, a collapsed lung, a pelvic fracture, facial lacerations, scalp lacerations, and multiple minor injuries. In addition, he has fallen twice from roofs, injuring his right hip and tail bone." He believed the medical evidence documented that Ellis's pain was chronic and severe. And he thought that the ALJ failed to correctly apply the Polaski factors and that he did not adequately explain the alleged inconsistenices in the record that supported his finding on Ellis's crediblity. Judge Heaney would have remanded for payment of benefits.

Johnson v. Barnhart, No. 03-3563 (8th Cir. Dec. 9, 2004)

The Eighth Circuit, in an opinion by Circuit Judge Michael J. Melloy, affirms a step 4 denial of SSI benfits. IQ testing in 1998 and 2001 indicated mild mental retardation but the examiner did not consider the test results reliable. Other tests suggested strong evidence of malingering:

In his first report from 1998, Dr. Maddock stated that Johnson’s Wahler Physical Symptoms Inventory score showed strong indications of malingering and that Johnson answered items on the Minnesota Multiphasic Personality Inventory-2 randomly. Dr. Maddock’s September 2001 report also noted that Johnson’s behavior showed indications that he answered randomly to many items without regard to content. Dr. Maddock concluded that little or no weight should be given to the information.

The Computerized Assessment of Response Bias verified malingering and response bias. Dr. Maddox stated that Johnson “wanted to receive or continue benefits[,] and [that Johnson] felt the best way to do that would be to embellish or exaggerate a disability,” and that Johnson was not open and honest during his interview. Finally, the Weschler Memory Scale-Revised presented scores inconsistent with other test scores and with Johnson’s complaints of a poor memory (they showed a strong memory).

The Court concludes that ample evidence supported the ALJ's finding that Johnson did not have valid IQ tests and that he didn't provide evidence of deficits in adaptive functioning.

(For the Curious, here's a link to the appellant's brief.)

Eichelberger v. Barnhart, No. 04-1074 (8th Cir. Dec. 8, 2004)

The Eighth Circuit, in an opinion by Circuit Judge Lavenski R. Smith, affirms a step 4 denial of disability benefits, finding that the ALJ's credibility and RFC assessments were proper and supported by substantial evidence. The claimant had a surgically-repaired rotator cuff tear which the ALJ found did not prevent her return to work as a bench assembler. The Court said that the ALJ "only need acknowledge and consider" the Polaski factors before discounting a claimant's subjective complaints:

In this case, the ALJ found that Eichelberger had objectively determinable impairments, but also noted that her incentive to work might be inhibited by her longterm disability check of $1,700 per month. Gaddis v. Chater, 76 F.3d 893, 896 (8th Cir. 1996) (allowing an ALJ to judge credibility based on a strong element of secondary gain). In addition, the ALJ discounted Eichelberger's complaints noting that she ceased employment at the same time she became the primary care giver to her grandchild. Furthermore, the ALJ considered that Eichelberger watched television, read, drove, and attended church.

The ALJ paid particular attention to the fact that Eichelberger cancelled several physical therapy appointments and that no physician had imposed any work-related restrictions on her. Brown v. Chater, 87 F.3d 963, 965 (8th Cir. 1996) (holding that a claimant's failure to comply with prescribed medical treatment and a lack of significant medical restrictions is inconsistent with complaints of a disabling pain).

The claimant bore the burden of proving she could not perform past relevant work, and the Court agrees with the ALJ that she failed to carry her burden.

Brown v. Barnhart, No. 04-1518 (8th Cir. Dec. 2, 2004)

The Eighth Circuit, in a decision by Circuit Judge C. Arlen Beam, affirms a step 4 denial of disability benefits. The Court found that the ALJ properly discounted the treating physician's opinion that Brown was disabled by uncontrolled hypertension because she was noncompliant with recommended treatment. The Court also found that the ALJ properly discounted Brown's testimony regarding her pain using the Polaski factors:

The ALJ considered testimony by Brown that seemed inconsistent with limitations caused by the kind of pain Brown said she had, including that despite purported limitations on standing, lifting, and walking, she was still able to cook, do laundry, sweep and mop, attend church, and tend to her personal needs. She also testified that she acted as the primary caregiver of her daughter with cerebral palsy, helping her bathe and tending to her needs whenever the part-time assistant was not present. There was also evidence in the record that Brown performed yard work. In addition to the evidence of Brown's daily activities, the record shows the ALJ inquired during the hearing into evidence related to the other Polaski factors.

Brown v. Barnhart, No. 03-3248, __F.3d__ (8th Cir. Nov. 18, 2004)

The Eighth Circuit, in an opinion by Circuit Judge Morris S. Arnold, affirms the denial of an SSI Child's benefits claim. The claimant, who developed foot drop and atrophy of his right calf as a result of an inflammatory neuropathy of his right peroneal nerve, contended that he met listing 101.03 which requires walking that is "markedly reduced in speed or distance despite orthotic or prosthetic devices." The Court disagreed:

As the ALJ noted, Talvis does not use a cane or any other ambulatory device to assist him with walking. At the hearing, Talvis and his mother testified that he played basketball with his neighborhood friends. Furthermore, on a function report prepared before the hearing, Ms. Brown indicated that Talvis was not limited in his ability to walk and was able to go up and down stairs.

The claimant also argued that the ALJ failed to properly consider his obesity. Reading between the lines, it looks as if the ALJ merely noted that the claimant had obesity without discussing it. The Court, however, concluded that "having reviewed the record as a whole we think that he adequately took that condition into account when denying Talvis benefits."

Zeiler v. Barnhart, No. 04-1073, __F.3d__ (8th Cir. Oct. 7, 2004)

The Eighth Circuit, in an opinion by Circuit Judge Diane E. Murphy, affirms a Step 4 denial of disablity benefits for a claimant who was 58 on her date last insured. The Court found that substantial evidence supported the ALJ's determination that an RFC for light work with no overhead lifting (due to mild joint space narrowing and tendonosis in her shoulder joints) did not prevent a return to work as a "clerk" or an "assembler." Where the claimant didn't complain to her doctors about her pain medication making it difficult to concentrate and where no medical evidence supported claimant's contention that she needed to lie down during the day, the ALJ properly discounted these complaints.

Hartfield v. Barnhart, No. 03-3180, __ F.3d __ (8th Cir. Sept. 27, 2004)--Parent's Benefits

The Eighth Circuit, in an opinion by Circuit Judge Michael J. Melloy, affirmed the denial of parent's benefits. In a parent's benefits case, the parent has the "statutory burden to prove that she was receiving at least one-half of her support from [her child] for the twelve-month period preceding his death. 42 U.S.C. § 402(h)(1)(B) (2004); 20 C.F.R. § 404.366(b) (1999)." The Court held that where the claimant was unable to produce "deposit slips or other evidence" documenting the money she received from her son and where the claimant's evidence regarding her expenses did not account for the value of the room and board she provided her son and his children, the ALJ's denial of benefits was supported by substantial evidence.

Randolph v. Barnhart, No. 03-3582, __ F.3d __ (8th Cir. Sept. 13, 2004)

The 8th Circuit, in an opinion by Circuit Judge Pasco Bowman, affirms the Commissioner's denial of Randolph's claim for benefits. Among other things, Randolph contended that the ALJ improperly discredited the treating physcian's opinion. The Court found that the ALJ did not err because the treating physician's opinion addressed an issue reserved to the Commissioner (and, thus, was not entitled to controlling weight), was based on only three visits, and was not supported by substantial evidence, particularly with respect to the treating physician's finding that the claimant suffered repeated episodes of decompensation in the workplace.

Potentially interesting side note:   The case was initially heard by an ALJ in Louisiana, a Fifth Circuit state. The claimant moved to Nebraska while the case was pending at the Appeals Council. The Court found that the ALJ in the Fifth Circuit was not bound to apply the Eighth Circuit's Polaski factors for evaluating crediblity.

Hilkemeyer v. Barnhart, No. 03-2440, __ F.3d __ (8th Cir. Aug. 26, 2004)

The Eighth Circuit, in an opinion by Senior Circuit Judge Pasco Bowman, affirmed denial of SSI benefits. The ALJ found that the claimant had a severe affective disorder but that diagnoses of PTSD, OCD and dysthymia were either non-severe or not corroborated by clinical evidence:

The record evidence shows that the only consistent diagnosis from Hilkemeyer's treating sources was affective disorder; thus the ALJ was justified in rejecting diagnoses of other mental disorders by sources who conducted a single examination of Hilkemeyer, and whose conclusions seemed to be based solely upon her subjective complaints.

The ALJ correctly determined that she did not meet listing 12.04, and substantial evidence supported the ALJ's finding that she could perform medium or light work.

Stormo v. Barnhart, No. 03-3184, __ F.3d __ (8th Cir. August 2, 2004)

The Eighth Circuit, in an opinion by Circuit Judge Roger L. Wollman, affirms the ALJ's denial of disability benefits. Among other things, the Court addressed the treating physician's opinion which is a reminder that more weight is given to an opinion regarding the functional limitations a claimant has than on the ultimate issue of disability:

"[The ALJ] did not commit error in giving little weight to Dr. Simpson’s statement that “[a]t this time, I feel this patient is totally disable [sic] and should be considered for assistance and disability,” A.R. 484, for it constituted a legal conclusion and failed to specify any functional limitations or provide medical data in support thereof. The ALJ also properly placed little weight on the opinion expressed in Dr. Gutnik’s letter. Dr. Gutnik’s conclusory statement “that Lance’s problems would make it difficult for him to hold any significant employment,” A.R. 513, similarly asserts an inappropriate legal conclusion."

The opinion also addresses listing 12.02B and the requirements for a proper hypothetical to a vocational expert.

Forte v. Barnhart, No. 03-2111, __ F.3d __ (8th Cir. July 29, 2004)

The Eighth Circuit, in an opinion by Judge Theodore McMillian, affirms an ALJ decision in which appellant had argued that the ALJ (1) improperly discounted allegations of disabling pain, (2) failed to give appropriate weight to the treating physician's opinion (3) did not consider his obesity in assessing his residual functional capacity (RFC) and (4) failed to correctly frame a hypothetical question to the VE:

This court has stated that “‘[a]n arguable deficiency in opinion-writing technique is not a sufficient reason for setting aside an administrative finding where . . . the deficiency probably had no practical effect on the outcome of the case.’” Id. (quoting Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir. 1987)).

Seems like the ALJ made enough of an effort to explain himself to pass muster, and the Court was unconvinced that had error occurred, it would have affected the outcome. For example, the ALJ "reviewed the progress notes and pointed out, among other things, that in June and August 1999, Dr. Ketcham had reported that Forte was walking six to eight miles a week, had denied that pain was radiating down his legs, and had not displayed chronic pain behavior."

Charles v. Barnhart, 375 F.3d 777 (8th Cir. 2004)

The Eighth Circuit, in an opinion by Judge Lavenski R. Smith, affirms the denial of disablity benefits at Step 5 of the SEP. The Court framed appellant's argument as follows:

". . . Charles argues that the "pivotal issue" in her case is "how many hours out of an eight hour workday can she be on her feet." She argues that her treating physician, Dr. Rock, limited her to standing no more than four hours per day, thus taking her out of the light exertional work classification. She argues that the ALJ improperly discounted Dr. Rock's determination of her limitations and wrongfully credited the opinions of the four consulting doctors who evaluated her only once or only reviewed her records."

Opinion, p. 8.

The Court agreed with ALJ that the treating physician's opinion that claimant could not stand more than four hours in an eight hour day was not supported by medically acceptable clinical and laboratory techniques. Thus, ALJ's finding that claimant could do a full range of light work, based on assessments of consultative examiners, was appropriate and supported by substantial evidence.

Judge Gerald W. Heaney filed a dissenting opinion.

Harris v. Barnhart, 356 F.3d 926 (8th Cir. 2004)

Nothing groundbreaking in this opinion by Circuit Judge Steven M. Colloton, affirming the ALJ's denial of benefits. The most interesting and significant part of the opinion relates to the burden of persuasion at step 5, discussed in Footnote 2:

"Our cases are inconsistent on where the burden of persuasion lies during step five of the Commissioner's process. Compare Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000) ("burden of production" shifts to Commissioner, but "burden of persuasion" remains with claimant) and Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995) (same) with Griffon v. Bowen, 856 F.2d 1150, 1153-54 (8th Cir. 1988) ("burden of persuasion" shifts to Secretary). See also, e.g., Bowen v. Yuckert, 482 U.S. at 146 n.5 ("the Secretary bears the burden of proof at step five"); Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000) (stating that "burden of proof" shifts to Commissioner, without specifying burden of "production" or "persuasion"); James, Burdens of Proof, 47 Va. L. Rev. 51, 51 (1961) ("burden of proof" is used in our law to refer to "two separate and quite different concepts": the burden of persuasion and the burden of production) (quoted in Omaha Indian Tribe v. Wilson, 575 F.2d 622,633 n.22 (8th Cir. 1978), rev'd on other grounds, 442 U.S. 653 (1979)).

The Commissioner recently promulgated a new rule designed to clarify that although a burden of production shifts to the Commissioner at step five, the ultimate burden of persuasion remains with the claimant. 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003). We need not opine regarding the location of the burden of persuasion prior to the new rule, because we conclude that even if the Commissioner bore that burden at step five, there is substantial evidence to support her decision."

The Court was unimpressed with a post-ALJ-decision attack on the crediblity of the ME who testifid at the hearing, and signaled that development of the record prior to the ALJ decision is mandatory:

It is well settled that an ALJ may consider the opinion of an independent medical advisor as one factor in determining the nature and severity of a claimant's impairment. See, e.g., Freeman v. Apfel, 208 F.3d 689, 692 (8th Cir. 2000); 20 C.F.R. §§ 404.1527(f)(2)(iii), 416.927(f)(2). Harris's counsel did not question the qualifications or competence of the medical advisor during the administrative hearing when there was an opportunity to make a record on such things, and we are not sympathetic to an effort to impugn the advisor's credibility with collateral materials during judicial review.

Dixon v. Barnhart, 353 F.3d 602 (8th Cir. 2003)

New decision from the 8th Circuit authored by Judge David R. Hansen finds substantial evidence supports denial at Step 2 of claim that alleged PTSD, chronic back pain and degenerative disc disease. ALJ discredited claimant's testimony and opinion of treating physician that claimant was disabled. Decision says that ALJ believed doctor's opinion was "inconsistent with the medical evidence as a whole."

Nothing in the Court's opinion suggests that the ALJ gave reasons for discrediting either the claimant or the doctor. Instead the Court said:

Medical opinions of a treating physician are normally accorded substantial weight. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000). However, medical opinions must be supported by acceptable medical evidence and must not be inconsistent with other evidence on the record as a whole. Id. In this case, Dr. Dale's medical records do not support a finding of severe PTSD. There is no evidence that Dr. Dale ran psychiatric tests for PTSD. In addition, Dr. Dale was not a psychiatric specialist.

Problems with the decision:

No mention of SSR 96-2 which requires that:

the notice of the determination or decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.

No mention of 20 CFR 404. 1527(d)(2)("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion.") Instead, the Court supplies the rationale for the denial.

No mention of Ghant v. Bowen, 930 F.2d 633, 637 (8th Cir.1991)(An ALJ who rejects a claimant's complaints must make an express credibility determination explaining his reasons for discrediting the complaints.)

Numerous circuits say judicial review is not possible if ALJ fails to articulate reasons for discrediting credibility of claimant and/or doctor's opinion. This seems like a duty to articulate case gone bad.