Corpus: 543,223 opinions · 3,177 judges · newest 2026-06-23 · expanding Coverage ↗
Opinion

459 F.3d 934

U.S. Court of Appeals for the Eighth Circuit · 2006-08-25

· GavelSight synced 2026-09-06 03:17:52

HEANEY, Circuit Judge,
dissenting.
I respectfully dissent. Substantial evidence on the record as a whole does not support the ALJ’s decision to deny Joanne M. Hacker disability benefits. To the contrary, it requires that she be granted benefits. First, all treating physicians testified that Hacker could not perform full-time work in our competitive economy. Their testimony was improperly rejected by the ALJ, who instead credited the testimony of nontreating physicians. Second, the ALJ found, both in the first and second decisions, that Hacker was unable to perform her past relevant work as a teacher of the blind and deaf or as a teacher’s aide as that work was actually performed by her. Third, the ALJ found that there was other work in the national economy, including that of an education assistant II as that work was ordinarily performed, that Hacker could do notwithstanding her disabilities. The record does not support this view. Accordingly, I would remand to the district court with directions to remand to the Commissioner to award benefits.
It is well settled that a treating source’s opinion is to be given controlling weight if the opinion is well supported by medically accepted clinical and laboratory diagnostic techniques and is consistent with other substantial evidence. 20 C.F.R. § 404.1527(d)(2). Here, Dr. Simon Mittal of the Mayo Clinic and Dr. Samuel Yue of the Bethesda Pain Center, both treating physicians, stated that Hacker was unable to work. Dr. Mittal treated Hacker from July 17, 2000 through 2003. In October of 2002, Dr. Mittal completed a residual functional capacity questionnaire based on his numerous examinations of Hacker. He reported that Hacker could lift ten pounds occasionally, sit for six hours of an eight-hour day, and stand or walk for two hours of an eight-hour day, but would need to change positions on a frequent basis and would frequently need to take unscheduled breaks, lasting 20 to 30 minutes, during the course of an eight-hour work day. He further stated that Hacker would be limited to low stress jobs, and would frequently experience pain or other symptoms severe enough to interfere with her attention and concentration. Lastly, Dr. Mittal opined that Hacker’s impairments would cause good and bad days, and she would be absent from work more than four times per month. (Admin. R. at 488-93.)
On March 10, 2004, Dr. Mittal completed a second residual functional capacity questionnaire. He diagnosed Hacker as having fibromyalgia, colitis, and depression and stated that she was not a malingerer. Dr. Mittal also reported that Hacker could lift ten pounds occasionally and would be able to stand and walk for two hours of an eight-hour day, and sit six hours of an eight-hour day. But Hacker would also need to take frequent, unscheduled breaks of twenty to thirty minutes without warning because of her symptoms. He further opined that Hacker’s pain and other symptoms would frequently interfere with her ability to maintain attention and concentration, and that her impairments would cause her to be absent from work more than four times per month. Dr. Mittal noted that Hacker was incapable of tolerating even low stress jobs. (Admin. R. at 769-74.)
Dr. Yue first saw Hacker at the Bethesda Pain Center on February 4, 2002. He subsequently examined and treated her in April and July. On November 1, 2002, he reported that Hacker suffered from fibro-myalgia with symptoms of irritable bowel, sleep disturbance, and cognitive and affective dysfunction. He determined that these ailments made it impossible for her to perform activities of daily work and living. He noted that her impairments are of a cyclic nature, and occasionally she could be expected to perform quite well, but during an exacerbation cycle, she would be completely disabled from any type of physical activity. He concluded that Hacker was disabled from any type of employment at that time. (Admin. R. at 494.)
Hacker was also treated by a psychotherapist, David Moll, from March 2, 2001 through October 2003. He completed a medical assessment on November 18, 2002. He stated that as the result of her impairments, Hacker was limited in her abilities to relate to co-workers; deal with the public; interact with supervisors; understand, remember and carry out detailed job instructions; and understand, remember and carry out simple job instructions. She also possessed only a fair ability to behave in an emotionally stable manner and relate predictably in social situations. Moll determined that Hacker had little or no useful ability to follow work rules; use judgment; deal with work stresses; function independently; maintain attention and concentration; understand, remember and carry out complex job instructions; and demonstrate reliability. He based his opinion on his testing, mental status evaluations, and treatment. He noted that in periods of physical or emotional distress, Hacker would be unable to make occupational adjustments and her attention and concentration would be significantly impaired. (Admin. R. at 508-10.)
Subsequently, in October 2003, Moll reported that any sort of contact with people in an employment situation would cause rather extreme stress that would not allow Hacker to perform even the simplest of tasks. He noted that because Hacker is only able to meet her personal needs in the home setting, he would not expect her to be able to work in any position or capacity. Moll further noted that Hacker scored in the moderate to marked depression range on the Zung Depression Inventory, which was consistent with his behavioral observation and Hacker’s self report. (Admin. R. at 720-21.)
The ALJ rejected the testimony of Drs. Mittal and Yue and Mr. Moll basically because he stated that their opinions were not well supported by medically acceptable clinical and laboratory diagnostic techniques and were inconsistent with other substantial evidence in the record. Of course, this is the appropriate standard for rejecting the testimony of the treating physicians. The ALJ, however failed to point out why the treating physicians’ conclusions were not medically acceptable and how they were inconsistent with the record. Indeed, the record is replete with reports from other treating physicians at the Mayo Clinic and elsewhere that fully support the conclusions reached by Drs. Mittal and Yue.
Instead of relying on the testimony of the treating physicians, the ALJ relied on the testimony of Dr. Andrew Steiner, who never examined Hacker and whose opinion was based solely on a review of the medical record. Thus, while it can be considered, it should not be given controlling weight in this case where the opinions of the treating doctors are fully supported by the record and are not only consistent with each other, but are also consistent with the numerous other doctors who treated Hacker.
With respect to Dr. Steiner, I certainly do not question his medical qualifications. The facts are, however, that he did not examine the entire record. Moreover, he expressed no opinion as to whether Hacker, in light of all of her disabilities, which include fibromyalgia, colitis, and depression, would be able “to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc). He simply reported that she could lift twenty pounds occasionally, ten pounds frequently, stand or walk six hours in an eight-hour day, and sit two hours in an eight-hour day-a basic recitation of the limitations noted by Hacker’s treating physicians. He expressed no opinion on the issues that Drs. Mittal and Yue found disabling: whether the combination of her disabilities would cause her to miss at least four days per month, which the vocational expert stated clearly would prohibit her from doing her past relevant work or any other work in the national economy.
The ALJ stated that Dr. Steiner’s opinion is consistent with that of Dr. C.T. Bessent. (Admin. R. at 532.) The ALJ writes that Dr. Bessent, who is also a non-treating, non-examining physician, believed “there is no objective evidence of an ongoing disease process.” (Id.) This is only partially true. In his report, Dr. Bessent concluded as follows:
[Fallowing a 1999[] memorandum concerning fibromyalgia[,] the frequency and intensity of subjective complaints[,] along with the amount of therapy required[,] indicate the presence of a severe impairment. A RFC has been prepared. If any other consultant requests additional development it would be very beneficial to obtain more detailed evidence of the current subjective complaints and functional limitations.
(Admin. R. at 709.)
In considering the mental restrictions of Hacker, the ALJ stated he considered Mr. Moll’s report and that of a non-examining physician, Dr. Harry Hoberman. The ALJ reported that Dr. Hoberman stated Hacker’s mental state was generally improving, but failed to note whether the improvement was such that Hacker was able to return to work. (Admin. R. at 504-06.) Moreover, Hoberman, who specialized in psychiatric disorders, failed to address the physical aspects of Hacker’s condition. (Id.)
Steven Dean Bosch, a vocational expert called by the Commissioner, testified that if Hacker had to take more than two breaks a day of fifteen minutes, she would be unemployable in the competitive job market. (Admin. R. at 88.) Likewise, if Hacker missed more than two days of work per month, her absenteeism would render her unemployable. (Id. at 94.) Unfortunately, that is Hacker’s condition. (Id. at 488-93.) This evidence is critical to an analysis of whether Hacker can remain in her past relevant work, but it is unaccounted for in the ALJ opinion.
After reviewing the entire record, I must conclude that the ALJ failed to give sufficient weight to the opinions of the physicians who personally examined Hacker. The opinions of the non-examining physicians appear one-sided, lacking the details and conclusions that illustrate Hacker’s inability to compete in the job market.
In similar fashion, the ALJ failed to fairly consider the testimony of Hacker. As background, Hacker is married, has a deaf child who still lives at home, is college educated and worked as a teacher’s aide. In his findings, the ALJ found Hacker capable of working in a competitive environment, based in part on her daily activities. The record reveals Hacker is able to do some gardening, walking, housework and household chores, dress and bathe herself, prepare the family dinner, drive, and babysit her nieces. (Admin. R. at 533.) We have consistently held that these activities are not a basis for holding that a claimant can do full-time work in our competitive economy. Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir.1996); Hogg v. Shalala, 45 F.3d 276, 278 (8th Cir.1995).
Moreover, the ALJ failed to give appropriate weight to the fact that Hacker suffers from diarrhea, fibromyalgia, and depression, and that she is unable to do anything when she is struck by the symptoms of her illnesses. (Admin. R. at 573-578.) During episodes of diarrhea, Hacker stated, “I’m just pretty much curled up in a ball as close to the bathroom as I can on the bed close to the bathroom.” (Id. at 578.) She further explained that these episodes or flare-ups occur every two or three months and last two to three days at a time, and that approximately once a year she has a more debilitating episode which lasts for weeks. (Id. at 579.) Hacker further described the pain that she endured. She testified the pain often was exhausting and that it disabled her five days every month. (Id. at 582-83.) As a result, Hacker believed she suffered from depression and alienation, and was unable to concentrate or comprehend reading materials. (Id. at 584-85.) In my view, the ALJ had no basis for rejecting this testimony as it is fully supported in the record.
For the reasons stated above, I would remand to the district court with instructions to remand to the Commissioner for an award of benefits.

Passage view · GavelSight