Ali Bazzi v. Tyco Healthcare Group

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-3555
___________
Steve L. McCoy, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Michael J. Astrue, Commissioner of *
the Social Security Administration, *
*
Appellee. *
*
___________
Submitted: May 11, 2011
Filed: August 4, 2011
___________
Before MURPHY, BEAM, and COLLOTON, Circuit Judges.
___________
BEAM, Circuit Judge.
Appellant Steve McCoy challenges the district court's affirmance of the Social1
Security Administration's (SSA) denial of McCoy's claim for disability benefits. We
affirm.
The Honorable Laurie Smith Camp, United States District Judge for the1
District of Nebraska.

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I. BACKGROUND
McCoy alleges he is disabled as a result of Post Traumatic Stress Disorder
(PTSD), Parkinson's disease, Attention Deficit Disorder (ADD), and peripheral
neuropathy. McCoy contends that the mental and physical limitations he has as a
result of these conditions, combined with his advanced age and limited job skills,
render him unable to perform any work available in the national economy.
McCoy, born on April 25, 1949, was 53 years old at the time of his alleged
disability-onset date and 56 years old on his date last insured. McCoy has a general
equivalency diploma, which he earned while serving in the military. McCoy's three
years of military service included a deployment to Vietnam. His service ended with
a dishonorable discharge, leaving him ineligible for veterans benefits. McCoy failed
to provide the Administrative Law Judge (ALJ) with a complete and detailed
overview of his post-military work history. However, it appears McCoy worked
intermittently in a number of unskilled jobs, including in positions as an automatic
machine attendant, a product tester, and a packer. The record indicates McCoy
worked as a heavy general laborer between 1987 and 1993 and worked other short-
term temporary jobs between 1993 and March 2001. McCoy has not worked outside
the home since March 2001.
On October 26, 2004, McCoy filed an application for benefits, alleging
disability beginning on September 15, 2000. After McCoy's claim was denied
initially and on reconsideration, he requested a hearing, which was held on January
17, 2007. At the hearing, McCoy amended his alleged disability-onset date to
February 1, 2003. McCoy stopped working in March 2001, and his date last insured
was March 31, 2006. Thus, to qualify for disability benefits, McCoy is required to
prove that he was disabled between February 2003 and March 2006. See Tilley v.
Astrue, 580 F.3d 675, 676 (8th Cir. 2009).
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On October 28, 2002, four months before his alleged disability-onset date,
McCoy saw his primary care physician, Steven Saathoff, M.D., complaining of hand
tremors, trouble sleeping, intrusive thoughts, depression, and anxiety. Upon
examining McCoy, Dr. Saathoff noted that McCoy retained normal muscle strength
and gait, but observed a fine tremor in McCoy's hands. Dr. Saathoff prescribed
McCoy medicine for his PTSD symptoms, but did not prescribe any medication for
McCoy's tremor at that time.
Over the next three years, McCoy made a series of visits to various healthcare
providers. This series included several trips back to Dr. Saathoff, visits with
neurologist John Puente, M.D., and, beginning in 2004, weekly visits with a licensed
mental health practitioner Janet Waage Lingren, Ed. D. Dr. Saathoff continued to
treat McCoy's PTSD symptoms with medication, and monitored his hand tremor,
eventually prescribing medication for that as well. In 2004, Dr. Saathoff referred
McCoy to Dr. Puente for further evaluation and treatment of his hand tremor. Dr.
Puente concluded that McCoy's tremor likely was partially caused by his PTSD but
that it also seemed to have an "essential" neurological component. Eventually, Dr.
Puente diagnosed McCoy with "likely" Parkinson's disease and treated him
accordingly. Starting in 2004, McCoy also had weekly sessions with Dr. Lingren,
who provided general counseling and "neurofeedback" to treat McCoy's PTSD
symptoms. In addition to regularly visiting these treating physicians, McCoy
underwent a number of consultative disability evaluations between 2003 and 2007,
visiting Ruilin Wang, M.D., psychologist William R. Stone, Ph.D., agency
psychologist Linda Schmechel, Ph. D., psychiatrist Mohammad S. Kamal, M.D., and
neuropsychologist Robert Arias, Ph.D. The administrative record contains extensive
documentation of these medical visits.
The healthcare providers who treated and examined McCoy came to somewhat
varied conclusions about the severity of McCoy's condition and the significance of
his resulting limitations during his insured period. McCoy's counselor, Dr. Lingren,
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expressed the most significant concerns about the limitations that McCoy's condition
would impose on his ability to work. Ultimately, she concluded in a 2005 report
prepared in conjunction with McCoy's disability application that McCoy's "ability to
do work related activities such as sitting, standing, lifting, carrying, and handling
objects has been dramatically compromised because of the tremors" and that his
ability to concentrate and sustain social interactions was "very limited" because of his
PTSD and Parkinson's-related symptoms. At one point, Dr. Puente also indicated that
McCoy had significant cognitive limitations; in a 2005 Residual Functioning
Capacity (RFC) assessment, Dr. Puente noted "marked" limitations in areas related
to memory and concentration.
On the other hand, a number of the healthcare providers who treated McCoy
during this same period concluded that his physical and mental limitations were
minor and that his most significant limitations were social and emotional. During a
July 2004 exam, Dr. Saathoff noted that, despite McCoy's tremor, McCoy retained
muscle strength rated at "5/5" in his upper and lower extremities and a "normal" gait.
In 2004, Dr. Stone, who performed multiple consultative exams on McCoy, noted that
McCoy did not display "any remarkable involuntary movements [or] gross
peculiarities of posture or gait" and that, despite a diagnosis of PTSD, McCoy was
generally capable of performing mental work-related functions. Dr. Stone did note
that, as a result of his PTSD and personality disorder, McCoy had some prohibitive
social limitations that undermined his ability to engage in ongoing interaction with
the public or cooperative work with supervisors or coworkers. Similarly, in 2005, Dr.
Kamal saw McCoy for a consultative exam and concluded that McCoy had the ability
to concentrate on and complete tasks and to follow and complete instructions, but that
he may have a limited ability to relate to coworkers and supervisors because of his
PTSD-related symptoms. Neuropsychological testing conducted by Dr. Stone in 2005
also revealed no significant memory or cognitive impairment. After reviewing the
test results, Dr. Stone concluded McCoy was "generally capable of sustaining
concentration and attention" with only brief periods of "decreasing frequency" where
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intrusive thoughts reduced his attention capacity to "low average" and that his social
impairments would not "be prohibitive in the kinds of relatively superficial
relationships typical for jobs." Similarly, a neuropsychological exam conducted by
Dr. Arias in January 2007–after McCoy's insured status had expired–indicated
moderate memory-retrieval impairment but noted otherwise normal cognitive
performance with perceptual-organization skills in the "superior" range.
In addition to the voluminous medical evidence, the ALJ also considered
evidence of McCoy's daily activities during his insured period. In 2003, McCoy
filled out a Daily Activities and Symptoms Report. He indicated that his activities
included gardening, mowing the lawn, watching television, and visiting his family.
McCoy's wife filled out a Supplemental Information Form at the same time,
indicating that McCoy helped with childcare and pet care and that he "independently
and appropriately" assisted with home-schooling his autistic daughter. In a December
2004 Supplemental Disability Report, McCoy continued to indicate he did yard work,
gardened, and drove three times per week. As late as July 2006, McCoy reported
mowing the lawn in the high heat. However, at his disability hearing, McCoy
indicated that he could not do "anything" at home because of his inability to focus
and because of his neuropathy. Upon further questioning, McCoy admitted that he
helped get his children ready for school, helped home-school his daughter,
occasionally drove, and helped with the children once they got home from school.
However, he maintained that he was not able to focus on any of this because of
intrusive thoughts. McCoy also said that he used a cane all the time because he was
in significant pain, but that he did not have the cane with him that day because it was
broken. McCoy further indicated that he could only walk about fifty feet and that he
could not wear shoes.
After considering the medical evidence and McCoy's testimony, the ALJ
examined Michael McKeeman, a vocational expert (VE). Based on the ALJ's
evaluation of the evidence, the ALJ posed a hypothetical to McKeeman about
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whether someone in McCoy's position would be able to find work in the national
economy. The ALJ asked what jobs would be available to a worker with McCoy's2
age, education, and work experience who: (1) could do only routine repetitive
unskilled work with ordinary supervision; (2) could not set goals or deal with job
changes; (3) could have only brief or superficial interactions with coworkers,
supervisors, and the public; and (4) was limited to occasional fingering due to a mild
tremor. The VE said a person in that position could perform approximately fifty
percent of light or medium jobs and would have a "wide range" of employment
options. The VE noted, however, that if he took McCoy's testimony at the hearing
as fully credible–including his claims that he could only walk fifty feet and could not
wear shoes–McCoy would likely not be able to find work in the national economy.
On July 19, 2007, the ALJ issued a written opinion finding that McCoy was not
disabled within the meaning of the Social Security Act. The Appeals Council denied
McCoy's request for review. McCoy filed a complaint in federal district court
challenging the denial of his claim. The district court affirmed, and McCoy appeals.
II. DISCUSSION
We review de novo a district court decision upholding a denial of Social
Security disability benefits. Bowman v. Barnhart, 310 F.3d 1080, 1083 (8th Cir.
2002). However, we review the underlying ALJ decision under a deferential
"substantial evidence" standard, and will affirm if, based on the record as a whole, a
reasonable mind could accept the ALJ's decision. Juszczyk v. Astrue, 542 F.3d 626,
631 (8th Cir. 2008). "If, after review, we find it possible to draw two inconsistent
positions from the evidence and one of those positions represents the Commissioner's
Because the details of McCoy's work history were unclear, the ALJ assumed2
McCoy could not perform relevant past work.
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findings, we must affirm the denial of benefits." Wiese v. Astrue, 552 F.3d 728, 730
(8th Cir. 2009) (quotation omitted).
The SSA has established a five-step sequential process for evaluating disability
claims. In step one, the ALJ decides whether the claimant is currently engaging in
substantial gainful activity; if the claimant is working, he is not eligible for disability
insurance benefits. 20 C.F.R. § 404.1520(b). In step two, the ALJ determines
whether the claimant is suffering from a severe impairment. If the claimant is not
suffering a severe impairment, he is not eligible for disability insurance benefits. 20
C.F.R. § 404.1520(c). At the third step, the ALJ evaluates whether the claimant's
impairment meets or equals one of the impairments listed in Appendix 1 of the
regulations (the "listings"). 20 C.F.R. § Pt. 404, Subpt. P, App. 1. If the claimant's
impairment meets or equals one of the listed impairments, he is entitled to benefits;
if not, the ALJ proceeds to step four. 20 C.F.R. § 404.1520(d). At step four, the ALJ
determines whether the claimant retains the "residual functional capacity" (RFC) to
perform his or her past relevant work. If the claimant remains able to perform that
past relevant work, he is not entitled to disability insurance benefits. 20 C.F.R. §
404.1520(f). If he is not capable of performing past relevant work, the ALJ proceeds
to step five and considers whether there exist work opportunities in the national
economy that the claimant can perform given his or her medical impairments, age,
education, past work experience, and RFC. 20 C.F.R. § 404.1520(g). If the
Commissioner demonstrates that such work exists, the claimant is not entitled to
disability insurance benefits. Id.
Here, the ALJ applied the proper legal framework and found that McCoy (1)
was not engaged in gainful activity; (2) did have severe impairments–Parkinson's
disease, PTSD, and a personality disorder; (3) did not meet the requirements of any
"listing" condition; (4) could not perform relevant past work; and (5) was capable of
performing jobs available in the national economy. Based on these findings, the ALJ
concluded that McCoy was not entitled to benefits.
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McCoy argues that the ALJ's analysis was erroneous in two respects. First,
McCoy argues the ALJ erred at step three by concluding that McCoy did not meet the
requirements of the Parkinson's disease listing. Second, McCoy argues the ALJ erred
in its RFC determination and its conclusion that McCoy is capable of performing
work in the national economy. We reject both arguments because the ALJ's findings
at each step were supported by substantial evidence.
A. Step Three
McCoy's first argument is that the ALJ erred at step three of the sequential
evaluation by deciding that McCoy's impairments did not meet or exceed the criteria
of the presumptively disabling Parkinson's disease listing. To qualify for disability
under a listing, a claimant carries the burden of establishing that his condition meets
or equals all specified medical criteria. Marciniak v. Shalala, 49 F.3d 1350, 1353 (8th
Cir. 1995). Merely being diagnosed with a condition named in a listing and meeting
some of the criteria will not qualify a claimant for presumptive disability under the
listing. "An impairment that manifests only some of [the listing] criteria, no matter
how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530 (1990). The
listing criteria for establishing "Parkinsonian syndrome" are "[s]ignificant rigidity,
brady kinesia, or tremor in two extremities, which, singly or in combination, result
in sustained disturbance of gross and dexterous movements, or gait and station." 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 11.06. There is substantial evidence supporting the
ALJ's step three conclusion that, prior to the expiration of his insured status, McCoy
did not meet or equal these criteria.
The ALJ concluded that McCoy did not satisfy the section 11.06 listing
requirement because there was no evidence that, during his insured period, McCoy
had a sustained disturbance in either dexterous and gross movement, or gait and
station. Even assuming, as McCoy argues, that the ALJ's finding that McCoy is
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limited to only occasional fingering because of his tremor implies that McCoy has
a sustained disturbance in dexterous movement, this is not enough to support a
finding of disability under section 11.06. There is substantial evidence supporting
the ALJ's finding that McCoy has failed to establish any sustained disturbance in
either gross movement or gait and station.
Dr. Puente–the neurologist who diagnosed McCoy with Parkinson's disease–
repeatedly noted that McCoy's gait was relatively normal. There is no indication in
any of Dr. Puente's notes that McCoy's tremor was having a sustained effect on
anything other than his fine-motor movements. Dr. Puente's observation that McCoy
suffered from a "very small degree of cogwheel rigidity" does not compel a finding
that McCoy had a sustained disturbance in gross movement, especially given his
conclusion that McCoy's movement was "essentially intact." Only a month before
McCoy's insured status expired, Dr. Puente noted that McCoy's Parkinson's was at a
"pretty mild stage" and was "not affecting his activities of daily living to a significant
degree." This kind of evidence does not compel a finding of disability under the
listings, which are designed to identify claimants who–regardless of age, education,
or work history–are incapable of performing "any gainful activity, not just 'substantial
gainful activity.'" Zebley, 493 U.S. at 532. The ALJ's conclusion that McCoy did not
meet this very high standard is supported by substantial evidence.
McCoy also argues that the ALJ erred by failing to develop the record on
whether McCoy did, in fact, have a sustained disturbance in gross movement or gait
and station. However, this argument mischaracterizes the ALJ's burden. While an
ALJ does have a duty to develop the record, this duty is not never-ending and an ALJ
is not required to disprove every possible impairment. Barrett v. Shalala, 38 F.3d
1019, 1023 (8th Cir. 1994). The ALJ is required to order medical examinations and
tests only if the medical records presented to him do not give sufficient medical
evidence to determine whether the claimant is disabled. Conley v. Bowen, 781 F.2d
143, 146 (8th Cir.1986). Here there was voluminous evidence documenting the
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effects of McCoy's Parkinson's disease and the ALJ's decision that McCoy had no
sustained disturbance in gross movement or station and gait was supported by
substantial evidence.
B. RFC Determination and Step Five
After finding that McCoy did not have a listing impairment, the ALJ went on
to determine McCoy's RFC. Relying in part on the testimony of a VE, the ALJ
concluded that McCoy was capable of performing work available in the national
economy. McCoy argues the ALJ erred by failing to account for all of McCoy's
limitations when determining McCoy's RFC and by determining that, given McCoy's
RFC, he was capable of performing work in the national economy. Specifically,
McCoy alleges: (1) the ALJ erred by not finding him presumptively disabled under
the medical-vocational guidelines contained in 20 C.F.R. Pt. 404, Subpt. P, App. 2
("the grids"); (2) the ALJ failed to consider some relevant evidence when determining
McCoy's functional limitations and improperly discredited other evidence; and (3) the
ALJ improperly relied on testimony from the VE about jobs that McCoy is not
actually capable of doing. We reject each of these arguments.
First, McCoy argues that the ALJ should have found him presumptively
disabled under the grids. The grids are a set of charts listing certain vocational
profiles that warrant a finding of disability or non-disability. 20 C.F.R. Pt. 404,
Subpt. P, App. 2. In this case, McCoy argues that the ALJ should have found him
capable of only light work and, thus, given his demographic profile, should have
found him conclusively disabled as of his 56th birthday. While McCoy is correct that
if he were restricted to light work he would have been conclusively disabled as of his
56th birthday, he is incorrect to suggest that the ALJ erred by finding him capable of
performing medium work.
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The grids take into account only exertional limitations and certain demographic
features; they do not account for non-exertional limitations. Reynolds v. Chater, 82
F.3d 254, 258-59 (8th Cir. 1996). McCoy's primary argument is he should have been
placed in the light category because he is limited to occasional stooping, which
renders him incapable of performing medium-level work. We reject this argument
because–as we discuss below–the ALJ did not find that McCoy had a stooping
limitation. Further, even if the ALJ had accepted McCoy's argument that he is limited
to occasional stooping, a stooping limitation is a nonexertional limitation and, thus,
is not part of the grids analysis. Lounsburry v. Barnhart, 468 F.3d 1111, 1115 (9th
Cir. 2006). The ALJ correctly considered only exertional limitations when
determining that McCoy was capable of medium-level work. 20 C.F.R. Pt. 404,
Subpt. P, App. 2, § 200.00(e)(2) ("[W]here an individual has an impairment or
combination of impairments resulting in both strength limitations and nonexertional
limitations, the rules in this subpart are considered in determining first whether a
finding of disabled may be possible based on the strength limitations alone."). The
only doctor to fill out a physical RFC evaluation about McCoy indicated that he was
capable of lifting fifty pounds occasionally and up to twenty-five pounds frequently.
This meets the exertional requirements for medium work. 20 C.F.R. § 416.967(c).3
Thus, under the grids, there was no conclusive presumption of disability. Because
McCoy also claimed nonexertional impairments, the correct procedure was to have
a VE testify about the effect of McCoy's nonexertional limitations on his ability to
McCoy argues that under the Social Security regulations, a limitation to3
stooping occasionally automatically undermines a claimant's ability to do the lifting
required for medium work. While lifting strength and stooping posture may often be
related, Social Security regulations treat them as factors that are to be examined
separately. Here, the only physician who indicated McCoy had a stooping limitation
also indicated he was capable of meeting all exertional requirements for medium
work. McCoy's argument erroneously blurs the distinction between the role of
exertional and nonexertional limitations in the disability analysis.
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find jobs in the national economy, which the ALJ appropriately did here. See Fenton
v. Apfel, 149 F.3d 907, 911 (8th Cir. 1998).
Second, McCoy argues that, even if it was proper for the ALJ to move past the
grids and consider VE testimony, the ALJ gave the VE an improper hypothetical that
was based on a determination of McCoy's RFC that failed to account for all of
McCoy's limitations because the ALJ ignored some evidence and improperly
discredited other evidence. A claimant's RFC represents the most he can do despite
the combined effects of all of his credible limitations and must be based on all
credible evidence. Flynn v. Astrue, 513 F.3d 788, 792 (8th Cir. 2008). Here, the ALJ
made a thorough and well-reasoned evaluation of the voluminous evidence related
to McCoy's impairments. McCoy raises a number of objections to the ALJ's analysis,
but none of them convince us that the ALJ's RFC determination was not supported
by substantial evidence.
McCoy argues that the ALJ erred by discrediting McCoy's complaints of
disabling pain and of physical impairments that limited his ability to walk, sit, stand,
reach, handle, and stoop. However, the ALJ's decision not to fully credit McCoy's
testimony on these matters was proper. In assessing a claimant's credibility, an ALJ
must consider all of the evidence related to the subjective complaints, the claimant's
daily activities, observations of third parties, and the reports of treating and
examining physicians. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). If
an ALJ explicitly discredits a claimant's testimony and gives good reasons for doing
so, we will normally defer to the ALJ's credibility determination. Gregg v. Barnhart,
354 F.3d 710, 713-14 (8th Cir. 2003). That is exactly what the ALJ did here; the ALJ
identified and summarized McCoy's complaints, described evidence of his daily
activities, identified inconsistencies between McCoy's testimony and record evidence,
and considered the reports of both treating and consultative physicians.
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Based on all of these factors, we believe the ALJ's conclusion that McCoy's
self-reported symptoms were not "entirely credible" is supported by substantial
evidence. "The ALJ may disbelieve subjective complaints if there are inconsistencies
in the evidence as a whole." Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). McCoy's complaints of disabling pain are inconsistent with repeated
observations from treating and consultative physicians that McCoy was not in acute
pain or distress. See Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005)
(discrediting claimant's claim of disabling pain where, inter alia, claimant's treating
physician repeatedly noted claimant "appeared to be in no significant distress.").
Similarly, McCoy's reports that he gardened, drove, and helped his children get ready
for school are inconsistent with his reports of disabling pain. Medhaug v. Astrue, 578
F.3d 805, 817 (8th Cir. 2009) ("[A]cts such as cooking, vacuuming, washing dishes,
doing laundry, shopping, driving, and walking, are inconsistent with subjective
complaints of disabling pain."). Further, McCoy's testimony that he could walk only
fifty feet because of acute pain was inconsistent with record evidence indicating that,
as late as July 2006, McCoy told the doctor he was mowing the lawn in the high heat.
The ALJ did not err by discrediting some of McCoy's reported symptoms.
McCoy also argues that the ALJ erred by failing to make explicit findings
regarding McCoy's ability to stoop, stand, walk, handle, and reach. We review the
record to ensure that an ALJ does not disregard evidence or ignore potential
limitations, but we do not require an ALJ to mechanically list and reject every
possible limitation. See Depover v. Barnhart, 349 F.3d 563, 567 (8th Cir. 2003)
("Here, however, the ALJ did not simply describe the RFC in 'general terms.' He
made explicit findings and, although we would have preferred that he had made
specific findings as to sitting, standing, and walking, we do not believe that he
overlooked those functions."). Based on the administrative record here, we conclude
that the ALJ did not overlook any of McCoy's alleged limitations. The ALJ identified
the proper legal framework, noting she had to take into account all credible
nonexertional limitations when determining McCoy's RFC. During the hearing and
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in her written opinion, the ALJ considered evidence that was relevant to whether
McCoy suffered from postural or manipulative limitations. Ultimately, the ALJ did
not define McCoy's RFC in "general terms," but rather affirmatively made clear
which of McCoy's alleged nonexertional limitations she found credible by including
them in the hypothetical she gave to the VE. In this context, we conclude the ALJ
implicitly made a finding that McCoy did not suffer from postural or manipulative
limitations, and we "do not see any reason to remand to make [that finding] explicit."
Depover, 349 F.3d at 568.
McCoy further argues that, even if the ALJ did make an implicit finding that
McCoy had no stooping limitation, that finding was improper because it failed to
account for medical evidence suggesting McCoy is limited to occasional stooping.4
Specifically, McCoy contends that the finding fails to account for a physical RFC
evaluation completed by agency physician A.R. Hohensee, M.D., in February of
2004, which indicated McCoy was limited to only occasional stooping, climbing,
balancing, kneeling, crouching, and crawling. However, we conclude there were
significant reasons for the ALJ to discredit this evaluation.
First, this 2004 evaluation of McCoy's postural limitations was: (1) given by
a doctor who did not examine McCoy; (2) in a checklist format with no narrative
discussion in the postural-limitation section; and (3) was not based on all relevant
medical evidence. Each of these factors was a reason for the ALJ to discredit Dr.
Hohensee's findings. "[T]he opinions of nonexamining sources are generally . . .
given less weight than those of examining sources." Wildman v. Astrue, 596 F.3d
959, 967 (8th Cir. 2010) (quotation omitted) (affirming decision to discredit
McCoy's arguments regarding the other alleged limitations rest almost4
exclusively on McCoy's own subjective complaints, which, as discussed above, the
ALJ properly discredited because they were inconsistent with medical evidence and
with McCoy's daily activities during his insured period. Thus, we conclude the ALJ's
implicit rejection of those alleged limitations was supported by substantial evidence.
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evaluation of agency psychologist who did not examine plaintiff). That is especially
true when, like here, the nonexamining expert's opinion is given in checklist format.
"[T]he checklist format, generality, and incompleteness of the assessments limit [the
assessments'] evidentiary value." Holmstrom v. Massanari, 270 F.3d 715, 721 (8th
Cir. 2001). Relevant here, although Dr. Hohensee provided a narrative discussion on
other parts of the evaluation, question seven in the postural-limitations section,
which asked Dr. Hohensee to "explain how and why the evidence supports your
conclusions in items 1 through 6. Cite the specific facts upon which your conclusions
are based," was left completely blank. Finally, the opinion of a nonexamining
consulting physician is afforded less weight if the consulting physician did not have
access to relevant medical records, including relevant medical records made after the
date of evaluation. See Wildman, 596 F.3d at 968. In this case, Dr. Hohensee did not
have access to the records of Dr. Puente, which as discussed below, indicate that
McCoy did not have significant postural limitations.
Second, Dr. Hohensee's finding that McCoy had a stooping limitation is
inconsistent with the record as a whole. Although Dr. Hohensee did not indicate what
evidence he was using to make his finding about postural limitations, at oral argument
McCoy indicated it was based on objective medical evidence provided by Dr. Wang
during a December 2003 consultative examination. McCoy emphasizes that Dr.
Wang noted that McCoy's spinal cord flexion was only 90 degrees. However, at the
same evaluation, Dr. Wang noted "cervical spine, flexion, extension, and lateral
flexion all normal" that McCoy was "stable and balanced" and that he found no
"neurological impairments." Thus, it is not clear that this is the medical evidence that
supported Dr. Hohensee's finding of a stooping limitation. Further, in 2006, Dr.
Puente–who regularly treated McCoy for several years–explicitly found he had "[n]o
postural troubles." The ALJ correctly noted that, although McCoy regularly visited
doctors during his insured period, he rarely mentioned any pain or limitation in
movement of his back, and none of the doctors McCoy visited prior to 2006 reported
treating McCoy for limitations imposed by back pain. Notably, in July 2006, three
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months after McCoy's insured status expired, McCoy visited a new doctor at Family
Physicians Group, complaining of "relatively new" and mild lower back pain, which
the treatment notes indicate had only been going on a "few days." Similarly, in 2006,
Dr. Puente noted that McCoy had not "focused on" his leg and back pain during their
previous visits. McCoy is responsible for establishing a limitation that occurred
before his insured status expired in March 2006. Thus, symptoms first reported and
observed during these visits are unhelpful to McCoy. See Davidson v. Astrue, 501
F.3d 987, 989 (8th Cir. 2007). Further, as the ALJ noted, the record indicates that
during his insured period McCoy was engaging in day-to-day activities, such as
gardening, that were inconsistent with McCoy's claimed limitations, including his
stooping limitation. See Ellis v. Barnhart, 392 F.3d 988, 995 (8th Cir. 2005) (proper
to consider evidence of daily activities when discounting physician's opinion of
claimant's limitations). Thus, we conclude that the ALJ's implicit finding that McCoy
had no stooping limitation was supported by substantial evidence.
McCoy also argues the ALJ erred by discrediting some of Dr. Puente's findings
about McCoy. Specifically, McCoy argues the ALJ erred by discrediting parts of a
mental RFC evaluation filled out by Dr. Puente in 2004 where he noted that McCoy
had "marked" limitations in areas of understanding and memory as well as
concentration and persistence. The ALJ explicitly referenced and discounted Dr.
Puente's findings in this area. An ALJ may reject a treating physician's opinion if it
is inconsistent with the record as a whole. Finch v. Astrue, 547 F.3d 933, 936 (8th
Cir. 2008). Here, the ALJ properly found Dr. Puente's mental RFC findings were
inconsistent with the record as a whole. Dr. Puente's report was filled out before Dr.
Stone performed objective testing at Dr. Puente's request. After conducting the
cognitive testing, Dr. Stone produced a report suggesting that McCoy retained an
average level in most areas of cognitive functioning and noting that the results of the
test were "inconsistent with the presence of a significant memory or cognitive
impairment." In 2007, Dr. Arias concluded that McCoy had only "moderate" memory
impairments and that the rest of his cognitive performance was within or above
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normal limits. Finally, the ALJ noted that Dr. Puente's evaluation appeared to be
based, at least in part, on McCoy's self-reported symptoms and, thus, insofar as those
reported symptoms were found to be less than credible, Dr. Puente's report was
rendered less credible. For these reasons, we conclude that the ALJ's decision to
partially discredit Dr. Puente's RFC was based on substantial evidence.
McCoy further argues that all of the above findings are nevertheless improper
because the ALJ did not apply the proper legal standard. Namely, McCoy argues the
ALJ failed to consider two critical elements: the sustainability of McCoy's ability to
function and McCoy's ability to function in a real world work environment. McCoy
is correct that an RFC determination must be based on a claimant's ability 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." Coleman v. Astrue,
498 F.3d 767, 770 (8th Cir. 2007). Here, the ALJ recognized and applied this
standard. The ALJ explicitly noted that McCoy's RFC should include only activities
McCoy could do on a "sustained basis," and the opinion clearly contemplates the
effect that a particular work environment would have on McCoy's ability to function,
including limitations on the type of supervision, pace, required adaptability, and
amount of public interaction that McCoy could handle. We conclude that, in
determining McCoy's RFC, the ALJ properly engaged in a "realistic evaluation of his
abilities to work." Juszczyk, 542 F.3d at 633.
Finally, McCoy argues that the ALJ improperly relied on incorrect VE
testimony about the jobs McCoy would be capable of performing. Specifically
McCoy argues that the VE testified that McCoy could perform jobs, as a building
cleaner and as a laborer, which are inconsistent with McCoy's limitation to occasional
fingering. However, some of the jobs in these categories that the VE referenced
require either no fingering or only occasional fingering. See, e.g., Dictionary of
Occupational Titles § 411.687-018 (poultry farm laborer); § 381.687-018 (industrial
cleaner) (4th ed. 1991). The VE did not suggest McCoy would be able to perform
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each and every job in the categories he mentioned, nor was he required to identify a
category in which McCoy could perform all of the jobs. Thus, McCoy has not
undermined the evidentiary value of the VE's testimony by identifying some jobs in
those categories that require more-than-occasional fingering. McCoy's argument that
he cannot do any of the jobs in those categories is based on his assumption of other
limitations (i.e., stooping limitations), which the ALJ properly did not find credible
and which, therefore, cannot be used to undermine the VE's analysis. See Davis v.
Apfel, 239 F.3d 962, 966 (8th Cir. 2001). Because the VE was presented with a
proper hypothetical, his testimony that there were jobs in the national economy that
McCoy could perform constituted substantial evidence. Tucker v. Barnhart, 363 F.3d
781, 784 (8th Cir. 2004).
III. CONCLUSION
For the foregoing reasons, we affirm.
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