Robert Ellis v. Jo Anne B. Barnhart, Commissioner of Social Security Administration.

HEANEY, Circuit Judge,

dissenting.

I respectfully dissent. The administrative law judge failed to give controlling weight to the opinion of Ellis’s long-time treating physician, that Ellis was permanently and completely disabled, instead giving credence to a medical consultant who examined Ellis on a single occasion. Moreover, the ALJ improperly rejected Ellis’s testimony with respect to his inability to work because of constant debilitating pain. After a careful review, I believe that Ellis has demonstrated by substantial evidence in the record as a whole that he is entitled to disability benefits starting November 1, 2000. I would remand to the district court with directions to remand to the Commissioner for an award of benefits.

The ALJ and the majority err in not considering Ellis’s extensive medical history when evaluating his application. It is appropriate to consider the claimant’s entire history as background in determining whether he is currently disabled. Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir.2004) (“[E]ven if a doctor’s medical observations regarding a claimant’s allegations of disability date from earlier, previously adjudicated periods, the doctor’s observations are nevertheless relevant to the claimant’s medical history and should be considered by the ALJ.”). See also Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d 192, 193 (1st Cir.1987) (per curiam) (“[T]he ALJ is entitled to consider evidence from a prior denial for the limited purpose of reviewing the preliminary facts or cumulative medical history necessary to determine whether the claimant, was disabled at the time of his second application.”).

Review of this previous history is revealing. Ellis has been involved in numerous serious accidents. (Admin. R. at 40, 235.) In 1979, when Ellis was 19, he was a passenger in an automobile accident and *998sustained fractures to both femurs, a fracture to the left radius, pneumothorax (collapsed lung), and numerous internal injuries. (Id. at 137.) In July of 1993, Ellis was in the bed of a pickup truck that rolled several times. He was thrown clear but sustained a pelvic fracture and other injuries. (Id.) On October 1, 1993, Ellis was a passenger in a car that was struck from behind. He was thrown through the windshield and sustained extensive facial lacerations and contusions of his right forearm and right hip. (Id. at 142.) Two months later Ellis resumed work as a roofer and sustained injuries to his right hip after a fall from a roof. (Id. at 143.) Sixteen months later, he fell again and sustained a bruise to his tail bone. (Id.) In September of 1997, Ellis was a passenger in a single-car rollover accident in which he suffered a severe scalp laceration. (Id. at 153-54.) In April 1998, Ellis was a passenger in a car that left the road and hit a tree. He suffered multiple minor injuries. (Id. at 164.) 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.

The ALJ improperly rejected the opinion of Ellis’s treating physician, Dr. Patrick. E. Johnson. A treating physician’s opinion is given controlling weight if that opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in the record. Holmstrom v. Massanari, 270 F.3d 715, 720 (8th Cir.2001) (quoting Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir.2000) (quoting 20 C.F.R. § 404.1527(d)(2)). The ALJ must give good reasons for the weight accorded a treating physician’s opinion. Id.

Dr. Johnson has been Ellis’s treating physician since August 9, 1993. He treated claimant for his injuries from the automobile accidents, falls, and the disabilities flowing from these accidents: deep vein thrombosis of the left leg, (Admin. R. at 138); excruciating pain in the right hip, (id. at 140); a chip fracture, (id.); ecchy-moses in the right leg, (id.); numbness in the right leg, (id. at 152); elevated blood pressure related to severe pain, (id. at 153); and chronic back, hip, and elbow pain (id. at 152, 157, 161, 166). Ellis has been treated for a collapsed gall bladder, (id. at 212); active hepatitis C, (id. at 163); infected teeth and severe gingivitis, (id.); mild to moderate degenerate facet disk disease, (id. at 165); and cervical spondy-losis, (id. at 168). In September, 2001, Ellis was hospitalized for deep vein thrombosis causing swelling in his left leg. (Id. at 258-61.) The admitting physician, Dr. Jesse D. Hoff, also diagnosed Ellis with non-insulin dependent diabetes. (Id. at 260.)

Dr. Johnson wrote repeated letters detailing his reasons for believing that claimant was .totally disabled.5 In the final letter, Dr. Johnson reiterated:

This patient has multiple chronic medical problems which render him incapable of any sustained gainful employment. Due to multiple motor vehicle accidents he has severe chronic pain in his back and his hip. For this he is taking very high doses of long-acting narcotic analgesics. He is also a diabetic and has chronic hepatitis C. He also has recurrent episodes of deep vein thromboem-bolism in his legs, severe dental caries and hypertension. This patient is incapable of even the most sedentary work *999because he cannot sit or stand probably for more than one hour at a time due to his chronic pain and his tendency toward developing blood clots in his legs.
I consider this patient to be permanently and completely disabled and I think he should be given every possible consideration for disability benefits.

(Id. at 279.) As this letter shows, Dr. Johnson believed that Ellis was disabled as a result of the cumulative impact of his many medical problems. Dr. Johnson’s letters, based on his treatment of Ellis over a period of years, are fully supported by the record detailed above. .

Dr. Richard M. Secor, a consultant for the State of Missouri, examined Ellis once, on January 18, 2001. (Id. at 214.) He expressed no opinion about Ellis’s ability to work forty hours, per week, in a competitive economy. He noted Ellis’s extensive medical history, but made no finding as to whether Ellis’s pain was, in fact, disabling. Dr. Secor did not address Dr. Johnson’s finding that claimant is unable to stand for more than one hour at a time because of chronic pain and the deep vein thrombosis.

In my view, the opinion of Dr. Johnson, claimant’s treating physician, is well supported by medically acceptable clinical and laboratory diagnostic techniques and, is entirely consistent with the record. His conclusion, that Ellis is unable to sit for more than an hour at a time, is consistent with evidence of multiple serious accidents, chronic pain, and deep vein thrombosis. Thus, it should be given controlling weight. See Singh v. Apfel, 222 F.3d 448, 452 (8th Cir.2000).

The ALJ also did not properly analyze five Polaski factors when evaluating the effect of Ellis’s pain on his ability to work. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984) (stating that the adjudicator must consider Ellis's daily activities; the duration, frequency and intensity of the pain; precipitating and aggravating factors; dosage, effectiveness, and side effects of medication; and functional restrictions when evaluating subjective complaints of pain).

The ALJ’s treatment of Ellis’s daily activities is at odds with the law in this circuit. The ALJ determined that Ellis’s testimony, that he watched television and read books on a daily basis, was evidence that he could sit for six hours in an eight-hour day and stand and/or walk for up to two hours in an eight-hour day, and thus perform sedentary work. He was in error. In McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc), we stated the ability to do sedentary work “is the 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.” The ability to watch television, like the ability to do light housework with assistance, attend church or visit with friends on the phone, does not qualify as the ability to do substantial gainful activity. See Hogg v. Shalala, 45 F.3d 276, 278 (8th Cir.1995); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.1989). A claimant “need not prove that her pain precludes all productive activity and confines her to life in front of the television” in order to prove her disability. Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir.1996); see also Harris v. Sec’y of Dep’t of Health & Human Servs., 959 F.2d 723, 726 (8th Cir.1992) (spending much of the day listening to the radio and watching TV is not substantial evidence of the ability to do full-time competitive work); Rainey v. Dep’t of Health & Human Servs., 48 F.3d 292 (8th Cir.1995) (the fact that claimant read and watched television is not substantial evidence of his ability to do full-time competitive work).

As to Ellis’s functional restrictions, Dr. Johnson reported that claimant could not sit or stand for more than one hour at a *1000time due to chronic pain and his tendency toward developing blood clots in his legs. He further reported that Ellis could never climb, balance, stoop, crouch, kneel, or crawl, and that he could not work around heights or moving machinery. The ALJ interpreted Dr. Johnson’s report to say that Ellis could work in a sedentary job that did not involve the postural activities indicated above. Nothing could be further from the truth. Dr. Johnson made it very clear that claimant could not sit for more than one hour at a time, which meant he was unable to do any sedentary jobs.

As to the duration, frequency and intensity of his pain, Ellis’s medical reports indicate that his pain is severe and chronic, and he received pain medication regularly. Dr. Johnson noted in his various reports that the pain relates to the multiple injuries Ellis suffered in his multiple accidents. From 1993 to the present, Ellis has taken prescribed pain medications, including Xa-nax, Tenex, Oxycodone, Oxyeontin, and Axid. While “[a] claimant’s allegations of disabling pain may be discredited by evidence that the claimant has received minimal medical treatment and/or has taken only occasional pain medication,” the opposite is true here; Ellis has taken numerous prescription medications. Singh v. Apfel, 222 F.3d 448, 453 (8th Cir.2000). There is no evidence in this record, however, that the medications alleviated his pain to the point where he could do sedentary work on a full-time basis. See Bowman v. Barnhart, 310 F.3d 1080, 1083 (8th Cir.2002).

While Polaski notes that subjective complaints of pain may be discounted if there are inconsistencies in the evidence as a whole, the adjudicator is not free to accept or reject Ellis’s subjective complaints solely on the basis of his personal observations. See Polaski, 739 F.2d at 1322. Rather, the ALJ must detail his reasons for finding inconsistencies in the record. He did not do so here.

The exhibits referred to by the ALJ are not inconsistent with Ellis’s complaints of pain and, when viewed in context, do not support the ALJ’s conclusion. Exhibit B-1F is a 43-page exhibit consisting of clinical data from August 1993 through November 2000. The ALJ refers to this exhibit as evidence that Ellis’s examinations were “essentially normal.” This cherry-picking is a misrepresentation of these reports. The report on page 164 of the record states only that Ellis’s liver enzymes are normal, not that his condition overall was normal. Dr. Johnson stated that Ellis should continue to take Oxycontin and OxylR for his pain. On the same page, he reports that Ellis was involved in a single-car accident where he suffered minor injuries, including occipital hemato-ma and multiple abrasions and contusions.

Exhibit B-7F is a report from the Parkland Health Center, where Ellis was admitted after an automobile accident. (Id. at 246-52.) It does not address Ellis’s general health. Ellis was a passenger in the front seat of a car involved in an automobile accident on or about April 12, 2000, and suffered facial injuries and lower lumbar pain. The report notes his extensive medical history, specifically, his hepatitis C, right hip fracture, bilateral femur fractures, and herniated discs. This is not consistent with the ALJ’s conclusion that the claimant had a normal physical examination. A post-accident examination in which Ellis specifically reported lower back pain is consistent with Ellis’s complaints of chronic pain.

The ALJ read Ellis’s medical records from 2000 and 2001, Exhibit B-11F, (id. at 267-77), very selectively, noting Dr. Johnson’s comment on a single visit that, though Ellis had fallen, everything seemed to work okay and that he had no new complaints. Again, the ALJ is cherry-picking the record; two lines later Dr. *1001Johnson repeated that chronic back and leg pain remain unchanged and that Ellis should continue to take his prescribed medication. (Id. at 275.) Fairly read, these records show that Ellis had better and worse days, but mentioned at every visit that he was experiencing pain. Ellis’s lifting, carrying, standing, walking, and sitting are all affected by the impairment; Ellis had severe chronic back and hip pain; he can only stand or walk for two hours in an eight-hour day; he can only sit for four hours in an eight-hour day and one hour without interruption; and he should never climb, balance, stoop, crouch, kneel, or crawl.

The ALJ relied heavily on a report submitted by Dr. Secor to the State of Missouri. Exhibit B-4F (id. at 214.) Dr. Secor reported that claimant is able to sit, stand, and lie down without assistance. Dr. Secor also noted the same medical history, current ailments, and prescribed medications as those discussed by Dr. Johnson.6

Dr. Secor did not express an opinion as to whether Ellis was able to work eight hours a day, five days a week in our competitive society, nor was he asked to do so after the ALJ received his report. As the record stands, Dr. Secor added little or nothing regarding Ellis’s ability to perform sedentary work day in and day out in our competitive economy.

Dr. Hoff, who treated Ellis’s deep vein thrombosis, reported that Ellis “has back pain, severe, and uses, significant pain medication [including Oxycontin, OxylR, Tenex, and Xanax], This is due to degenerative joint disease and the injuries he has gone through.” (Id. at 258). He noted Ellis’s multiple scars on his extremities due to surgeries, and that his left leg was swollen from about the knee down. Dr. Hoff concluded that Ellis had an acute deep vein thrombosis, and he prescribed anticoagulation therapy. In his discharge summary Dr. Johnson stated that Ellis’s final diagnosis was “[l]eft lower extremity deep venous thromboembolism, stable and improved. Newly discovered non-insulin-dependent diabetes mellitus. Chronic severe back and hip pain secondary to multiple motor vehicle accidents. History of hepatitis C.” (Id. at 260.) This report is also consistent with Ellis’s reports of pain.

Ellis raises two additional issues in his brief. First, that the ALJ failed to fully develop the record. I find no merit in that claim. The record was fully developed. The ALJ, however, ignored much of the record and selectively chose sentences or paragraphs to support his view. Ellis also claims that a vocational expert should have been called and given a'proper hypothetical.7 • In my view, there is substantial evi*1002dence on the record as a whole to award disability payments to Ellis. No remand is necessary. The record was fully developed, but largely ignored by the ALJ. There is therefore no need to remand for testimony from a vocational expert.

Conclusion

After a careful review of the entire record, I believe that Ellis has demonstrated by substantial evidence in the record as a whole that he is entitled to disability benefits from and after November 1, 2000. I would remand to the district court with directions to it to remand to the Commissioner for an award of benefits.

. Dr. Johnson wrote letters on October 21, 1993, April 1, 1996, April 22, 1997 October 5, 1998, (Admin.R. 175-79), and a final letter on November 21, 2001, (id. at 279).

. Dr. Secor recorded Ellis's medical history: The patient has a rather extensive past medical history, which involves multiple motor vehicle accidents in which he has sustained multiple fractures, some of them compound comminuted with multiple surgical procedures. He also has a history of Thrombo-phlebitis, Hepatitis C and a "ruptured kidney and Pancrease.” He also has a history of pelvic fractures.

(Admin. R. at 214.) The report also notes surgical procedures: "[b]ilateral open reduction internal fixation of femur fractures as well as open reduction internal fixation of left wrist fracture,” (id.) and Ellis’s medications: "Xanax 1 mg. t.i.d., Tenex 2 mg one daily, Oxycodone 5 mg. one Q8H PRN and Oxycontin 80 mg one Q8H for pain. He also takes Axid 150 mg b.i.d.” (Id.)

He concluded that Ellis had experienced "multiple motor vehicle accidents with multiple traumatic injuries including bilateral femoral fractures, left wrist fracture and chronic back pain, ... [a][h]istory of Hepatitis C, apparently untreated, post traumatic arthritis ... [a]ncient history of ethanol abuse, [h]isto-ry of Thrombophlebitis ... and tobacco abuse.” (Id. at 216.)

. When this matter was previously before this ALJ, the ALJ asked the vocational expert: "Assume that the claimant is able to do sed*1002entary work. Is there work in the national economy which he can do?” Wording a hypothetical in this manner is improper. “If a hypothetical question does not include all of the claimant's impairments, limitations, and restrictions, or it is otherwise inadequate, a vocational expert's response cannot constitute substantial evidence to support a conclusion of no disability. Cox v. Apfel, 160 F.3d 1203, 1207 (8th Cir.1998). See also Wiley v. Apfel, 171 F.3d 1190, 1191 (8th Cir.1999); Bradley v. Bowen, 800 F.2d 760, 764 (8th Cir.1986).