John Gregory Lambros v. USA

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-2839
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William Cossette, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota
Kenneth S. Apfel, Commissioner of *
Social Security, * [UNPUBLISHED]
*
Appellee. *
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Submitted: October 25, 2000
Filed: November 24, 2000
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Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit
Judges. ___________
PER CURIAM.
William Cossette appeals from the final judgment entered in the District Court
for the District of Minnesota, affirming the Commissioner’s decision to deny his
application for disability insurance benefits. For reversal, Cossette argues the denial
of benefits is not supported by substantial evidence because the administrative law
judge (ALJ) erred in: (1) discrediting his subjective complaints of disabling pain;
(2) rejecting the testimony and reports of three medical experts--treating physician
James Blackman, testifying medical expert Dr. Paul Reitman, and psychologist Kent

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Newman; (3) not completing a psychiatric review technique form (PRTF); and
(4) crediting the testimony of the vocational expert (VE). For the reasons discussed
below, we reverse and remand for an award of benefits.
Cossette alleged disability since July 1975, and he was last insured on December
31, 1979. At a hearing before the ALJ, Cossette testified that, from 1975 to 1979, he
suffered from elbow and arm pain, obesity, and depression. Following the hearing, the
ALJ found that Cossette’s severe physical impairments of obesity and bilateral
epicondylitis (tennis elbow) were not equal to listed impairments; and that, although he
could not return to his past relevant work, he retained the residual functional capacity
to perform the security guard, messenger, and cashier jobs identified by the VE. The
ALJ discredited Cossette’s complaints of disabling pain, finding them inconsistent with
his substantial daily activities. Last, the ALJ concluded Cossette did not suffer from
the alleged mental impairment, finding the contrary opinions of Drs. Blackman,
Reitman, and Newman not probative.
We review the ALJ’s findings to determine if they are supported by substantial
evidence in the record as a whole, i.e., evidence that a reasonable mind would find
adequate to support the conclusion. In determining whether existing evidence is
substantial, we consider evidence that detracts from the Commissioner’s decision as
well as evidence that supports it. See Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir.
2000).
As to Cossette’s physical impairments and subjective complaints of disabling
pain, we conclude the ALJ did not fully consider all of the factors described in Polaski
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Cossette’s limited daily activities--
watching television, drinking coffee with friends, and needing help to bathe, dress, and
shave--were consistent with his complaints and were corroborated by three lay
witnesses’ statements. See Singh v. Apfel, 222 F.3d 448, 452-53 (8th Cir. 2000)
(staying around house, watching television, needing help to shave, and being unable to

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sit through entire movie were consistent with complaints of disabling pain). Cossette’s
complaints were further supported by his seeking treatment from Drs. P.L. Boman and
Blackman following elbow surgery, Dr. Blackman’s prescribing cortisone shots and
Valium, his consistent use of alcohol and drugs to relieve pain, and his testimony that
simple tasks such as shaving and lifting a pencil aggravated his arm pain. See Wilson
v. Sullivan, 886 F.2d 172, 176-77 (8th Cir. 1989) (ALJ erred in discrediting subjective
complaints where claimant sought treatment two months after surgery, daily activities
were substantially restricted for man his age and as compared to what he had done prior
to alleged onset date, and claimant increased alcohol consumption following surgery).
As to Cossette’s mental impairment, we conclude that the ALJ erred in rejecting
the testimony and reports of Drs. Blackman, Reitman, and Newman. Although an ALJ
may reject the conclusions of a medical expert if they are inconsistent with the whole
record, see Pierce v. Apfel, 173 F.3d 704, 707 (8th Cir. 1999), we find these opinions
are not inconsistent with the record. The medical diagnoses of depression, though
retrospective, were corroborated by the three lay observers who stated Cossette
exhibited symptoms of depression in the 1970s. See Jones v. Chater, 65 F.3d 102, 104
(8th Cir. 1995) (retrospective medical opinions alone generally do not suffice, unless
claimed onset date is corroborated by lay observers like family members). Dr.
Blackman’s 1979 treatment notes, albeit scant, show Cossette visited him for “brief
counseling,” and Dr. Blackman noted he often treated Cossette informally outside the
office. Dr. Reitman testified that Cossette’s hesitancy to see a psychiatrist was not due
to malingering, that pharmacology for depression in 1975 was not advanced, and that
Cossette’s seeing only Dr. Blackman (his family doctor) was not atypical. Dr.
Newman’s diagnoses of recurrent major depression and alcohol and polydrug abuse
were made not only after listening to Cossette’s description of his mental state from
1975 to 1979, but also after examining him twice and administering the Wechsler Adult
Intelligence Scale-Revised. See 20 C.F.R. § 404.1508 (2000) (mental impairment must
be established by medical evidence, not only by claimant’s statement of symptoms).

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We further conclude that the ALJ erred by not completing a PRTF as required by 20
C.F.R. § 404.1520a (2000). See Battles v. Shalala, 36 F.3d 43, 45-46 (8th Cir. 1994).
In view of our findings that the ALJ improperly rejected the opinions of Drs.
Blackman, Reitman, and Newman, and Cossette’s subjective complaints of disabling
pain, we find that the hypothetical question posed to the VE did not adequately reflect
Cossette’s impairments. Therefore, the VE’s testimony that jobs exist for Cossette
cannot constitute substantial evidence. See Singh v. Apfel, 222 F.3d at 453.
In light of the above-noted errors, we need not--and do not--reach Cossette’s
remaining arguments on appeal. The record presented to the ALJ contains substantial
evidence supporting a finding of disability: the objective medical record, Cossette's
subjective complaints of disabling pain, Cossette's limited daily activities, the medical
and lay opinions that Cossette suffered from depression, and the few kinds of jobs in
the economy that Cossette could perform given his physical and mental impairments.
Accordingly, we reverse the judgment of the district court and instruct the court to
remand to the Commissioner for an award of benefits. See Andler v. Chater, 100 F.3d
1389, 1394 (8th Cir. 1996) (if claimant is disabled on record, appeals court may reverse
and remand for entry of order granting benefits).
PASCO M. BOWMAN, Circuit Judge, concurring specially.
I would remand for further proceedings.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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