Blakeman v. Astrue

BYE, Circuit Judge,

dissenting.

Because the ALJ’s decision denying Jeff Blakeman benefits is not supported by the record, I would reverse the judgment of the district court and return with instructions to remand to the Commissioner of the SSA for an award of benefits from August 1, 2003.

I

The majority asserts this Court’s focus for review must be on the ALJ’s conclusion Blakeman’s complaints of fatigue were “credible only to the extent consistent with [the ALJ’s] RFC findings.” Ante at 882. However, this simply begs the question at issue in this appeal: whether the ALJ’s credibility assessment, which formed the basis for his RFC finding is supported by substantial evidence. The ALJ first assessed the credibility of Blakeman’s complaints of fatigue and dizziness. Then, based on such determination, the ALJ made the RFC determination. Of course, given this order of analysis, the complaints the ALJ found to be “credible” will be consistent with the RFC findings — those complaints are the sole basis for the RFC finding. The majority’s analysis does *884nothing but confirm what we already knew-that the ALJ discounted Blakeman’s complaints of fatigue and, therefore, found he has the RFC “to lift 15 pounds occasionally and 10 pounds frequently, stand and/or walk for 4 hours in an 8-hour workday, [and] sit for 4 hours in an 8-hour workday....” What we have been asked to review, however, is whether the ALJ’s decision to discount Blakeman’s complaints of fatigue and dizziness is substantially supported by evidence in the record.4 My analysis leads to the conclusion the ALJ’s credibility assessment, and, therefore, it’s RFC finding, is not supported by substantial evidence in the record with respect to Blakeman’s disability from August 1, 2003, going forward.

It is a well-settled principle that if there are any inconsistencies in the evidence as a whole, an ALJ is permitted to disbelieve a plaintiffs subjective complaints. See, e.g., Cruse v. Bowen, 867 F.2d 1183, 1186 (8th Cir.1989); Conley v. Bowen, 781 F.2d 143, 147, (8th Cir.1986); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). In making this determination, the ALJ must list specific reasons for the finding on credibility, supported by the evidence in the case record. See Soc.Sec. Reg. 96-7p, 1996 WL 374186 at *4. In this case, each of the ALJ’s stated reasons for discounting Blakeman’s testimony regarding his fatigue and dizziness is not supported by the record.

A. Blakeman’s Failure To Take Medication For Fatigue

The ALJ noted, despite his complaints of fatigue and dizziness, Blakeman takes no medication for fatigue “such as a B-12 shot.” R. at 24. There is no evidence in the record that physicians use B-12 shots to treat fatigue resulting from IHSS, nor is there evidence any physician treating Blakeman had recommended he use B-12 shots to treat his symptoms of fatigue and dizziness. In addition, the record establishes Blakeman had been receiving treatment to control and alleviate his fatigue and dizziness, along with his other symptoms. As explained in the record, IHSS is a heart condition in which there is an excessive thickening of the heart muscle. The condition reduces the area where blood flows out of the heart and through the aortic valve (the outflow tract), causing turbulent flow and sometimes obstruction to flow which results in the excessive speed and force of heart contractions. Various drugs are used to treat the disease, such as beta blockers, which ease symptoms by slowing the heart’s pumping action, and calcium channel blockers, which ease symptoms by relaxing the heart and reducing the blood pressure in it. These drugs ease and control fatigue, dizziness, and other similar symptoms "by treating the underlying cause of the fatigue — the excessive speed and force of his heart contractions.

The record shows, since August of 2003, Blakeman has been receiving treatment and taking medication for his fatigue by treating the underlying cause of the fatigue — the excessive speed and force of his heart contractions. In August of 2003, in an effort to alleviate his symptoms of fatigue and dizziness, Blakeman began taking Cardizem to suppress episodes of abnormally fast hearth rhythms and aceel-*885erated blood flow across the outflow tract and aortic valve area of his heart. R. at 226, 229. Blakeman did not respond to the Cardizem and, therefore, in January of 2004, Dr. Vaughn-Whitley started Blakeman on Verapamil, a calcium antagonist which, “like beta-blockers, reduces symptoms such as chest pain, breathlessness and palpitations” and “can cause excessive slowing of the heart rate and lower blood pressure.” R. at 278. At the time of the hearing, Blakeman was still taking Verapamil. Thus, the ALJ’s conclusion Blakeman is not taking medication for his fatigue is not only unsupported by the record, it is contradicted by it.

B. Blakeman’s Ability To Walk S00 Feet

The ALJ discredited Blakeman’s testimony about his limited ability to walk, finding, although Blakeman testified he could not walk more than twenty to thirty feet and now has to use a cane, he made “no such complaints or allegations to his physician but rather reported he was unable to walk 800 feet without having shortness of breath,” to which Dr. Vaughn-Whitley responded, “lose weight and try to get more physically active.” The ALJ incorrectly concluded Blakeman’s testimony was contradicted by the record.

Contrary to the ALJ’s conclusion, the record shows Blakeman did complain to his doctors he could not walk more than twenty to thirty feet without a cane or something to lean against. Blakeman complained to Dr. Vaughn-Whitley about an increase in fatigue with activity. Id. at 286. He told her activities, such as walking, had been exacerbating his fatigue and dizziness. Id. He noted, as an example, that “walking] from the parking lot into WalMart” would exacerbate his symptoms. Id. Blakeman also explained the severity of his symptoms varied from day to day. He indicated on some days he might be able to walk one block. Id. In 2004, Blake-man indicated he was able to “walk behind a cart at WalMart,” but could not “ambulate very far if no cart [was] available for support.” Id. at 251.

Moreover, Blakeman’s testimony does not contradict his physician’s report he “was unable to walk 300 feet without having shortness of breath.” Id. at 262. Blakeman testified at the hearing before the ALJ: “In feet, I would say [I can walk] 20 or 30 feet, but I started using a cane, and it seems like if I pace myself and go a lot slower, I can walk a little farther.” Id. at 333. If one is short of breath at twenty feet, they will assuredly be short of breath at 300 feet. If anything, Blake-man’s concession that he can walk farther than twenty feet if he moves slower and uses a cane shows he was being forthright and supports the veracity of both statements.

Finally, the ALJ’s reliance on Dr. Vaughn-Whitley’s statement to Blakeman to “lose weight and try to get more physically active” is wholly misplaced. Dr. Vaughn-Whitley’s statement was made in response to Blakeman’s complaints about his back pain and there is nothing in the record showing Dr. Vaughn-Whitley ever responded in this manner when Blakeman complained of fatigue or dizziness.

C. Blakeman’s Testimony About His “Extremely Uneventful Lifestyle”

With respect to Blakeman’s testimony on what the ALJ characterized as his “extremely uneventful lifestyle,” the ALJ noted it was:

interesting ... that [Blakeman] is able to lose some weight over the last few months given his testimony of such an extremely uneventful lifestyle, a description contrary to his treating physician’s recommendation to increase his physical activity, as well as in conflict with the claimant’s other reports ... including but not limited to such activities as *886‘working on his vehicle’ and dyspnea especially while shopping or trying to keep up with his children.

R. at 25. The medical records show Blakeman’s recorded weight varied as follows in the months leading up to the 2004 hearing before the ALJ:

October 12, 2004 255.5 pounds
April 27, 2004 260 pounds
April 1, 2004 264 pounds
February 26, 2004 262 pounds
January 27, 2004 260 pounds
January 24, 2004 262 pounds
December 31, 2003 259 pounds
December 3, 2003 259 pounds
October 1, 2003 258 pounds
August 11, 2003 253 pounds

At most, the ALJ is referring to 8.5 pound drop from April 1, 2004, to October 12, 2004, a 3.2% weight loss over seven months. This is hardly remarkable. Further, because one can lose weight by reducing caloric intake or limiting fat consumption without increased physical activity, Blakeman’s weight loss does not contradict his testimony about his extreme fatigue and dizziness. In addition, I fail to see how Dr. Vaughn-Whitley’s statement Blakeman needs to get more physically active contradicts Blakeman’s testimony about his fatigue and dizziness and his limited ability to do physical activity. If anything, Dr. Vaughn-Whitley’s statement supports Blakeman’s testimony.

The ALJ next found Blakeman’s testimony about his “extremely uneventful lifestyle” was contradicted by evidence in the record showing Blakeman had been working on his vehicle. Specifically, on October 30, 2001, Blakeman sought medical treatment for low back pain and the doctor noted, “He was working on his vehicle and noted shortly afterwards he had tightness and back pain.” R. at 158. This vague statement about one instance of activity in 2001 does not contradict Blakeman’s testimony. As the ALJ noted, the record does not indicate what type of work was involved. According to the ALJ, “activities of stooping or kneeling could be a possible assumption.” Id. at 21. Even if this “could be a possible assumption,” other types of activities could just as likely be assumed. There is simply no way to know, with any degree of confidence, what type of activities were involved. Further, I do not believe one isolated event of “stooping or kneeling” is inconsistent with Blakeman’s claims of extreme fatigue and dizziness or inconsistent with his “extremely uneventful lifestyle.” Blakeman has never claimed to be totally incapacitated. To the contrary, he claims his ability to engage in physical activity is limited by his fatigue and dizziness and that on some days he is able to engage in more strenuous activity than on others, depending on the severity of his fatigue and dizziness. Stooping or kneeling for a limited period of time on one given day is hardly inconsistent with Blakeman’s claims.

The ALJ also pointed to Blakeman’s statements that he went shopping and tried to keep up with his children as evidence Blakeman was lying about his fatigue and dizziness. See id. at 25. The record, however, does not support this conclusion. In May of 2002, Dr. Vaughn-Whitley summarized Blakeman’s symptoms as follows: “He does have some [shortness of breath] on exertion, some days worse than others. He notices this especially while shopping or trying to keep up with his children.” Id. at 169. This statement is entirely consistent with Blakeman’s claim of fatigue. If the ALJ is trying to suggest anyone who can shop or tries to keep up with their children can work eight hours, five days a week, such suggestion is simply absurd at best. See Hogg v. Shalala, 45 F.3d 276, 278 (8th Cir.1995) (“[T]he ability to do activities such as light housework and visiting with friends provides little or no support for the finding that a Claimant can perform full time competitive work.”).

*887 D. Consistency Of Blakeman’s Complaints

The ALJ also based the credibility determination on its finding Blakeman’s complaints of dizziness were inconsistent. R. at 25. Specifically, the ALJ stated:

While [Blakeman] alleges dizzy spells, elsewhere claimant reports such only upon standing and that such lasted only several seconds (Ex. 4F), and later reported only some episodes but such only occurred at the end of the day (Ex. 7F/11) and later still that he had no syncopal episode for greater than four months.

Id. The intensity and duration of Blake-man’s symptoms varying over the course of several years is not surprising, nor is such a basis upon which to discount Blake-man’s testimony. Contrary to the ALJ’s finding, the law recognizes “[s]ymptoms may vary in their intensity, persistence, and functional effects, or may worsen or improve with time, and this may explain why the individual does not always allege the same intensity, persistence, or functional effects of his or her symptoms.” Soc. Sec. Reg. 97-7p. Further, the ALJ’s suggestion Blakeman’s complaints of dizziness should be discredited because he “had no syncopal episode for greater than four months” is erroneous. R. at 25. A “syn-copal episode” means fainting or losing consciousness. A person can have dizzy spells without fainting or losing consciousness. I fail to see how Blakeman’s continuous complaints of dizzy spells makes his testimony less credible.

E. Blakeman’s Work From October 1997 Through October 2000

I agree with the ALJ’s conclusion about Blakeman’s work history from October 1997 through October 2000 involving functional capability “somewhat greater than the claimant has generally reported, and that [he] stopped his warrant maintenance work for reasons not related to his allegedly disabling impairments.” R. at 24. But Blakeman’s minimal work history in 1997-2000 is not good cause for challenging veracity of his self-reports in 2001-2004. Further, a careful reading of the record shows Blakeman was entirely forthright about his work history from the very beginning of the application process for disability benefits. In fact, in May 2003, he reported to the SSA he became “unable to work” on September 1, 2000, based on his inability to be at work the entire day, be on time, and be adequate. Id. at 72. At best, the ALJ should have used the information to adjust the disability onset date to October 2000 or some subsequent date.

F.Blakeman’s Failure To Follow Treatment Regimen

The ALJ attacks Blakeman’s credibility by enumerating events which the ALJ concluded showed Blakeman did not follow his doctors’ advice. For example, the ALJ noted Blakeman had failed to sign up for telephonic pacemaker checks, and Dr. Vaughn-Whitley ended up signing him up for these checks. R. at 25. While Blake-man had not signed up for the pacemaker checks, the record suggests no one ever instructed him to register for them. For his first pacemaker, the record indicates on February 14, 1995, a. Dr. John R. Bed-ingfield, Jr., noted: “Monthly telephone follow-ups would seem to be unnecessary in that he does not require the pacemaker for normal heart rate purposes and therefore a q. 6 month follow-up was arranged here in the office.” Id. at 196. After his second pacemaker was installed, his treating physician noted: “We will see him back in three to four months for a recheck of his AICD, sooner if he would have problems.”- Id. at 230. A handwritten nursing note states: “Pt’s wife called today wondering about life watch call / does he still need to have phone checks / discussed with Dr. Whitely / pt has AICD does not *888need life watch check / pt was called and informed.” Id. at 240.

The ALJ also cited one instance where Blakeman refused to schedule a timely follow-up appointment. R. at 25. While Blakeman did state he refused to schedule such an appointment, he did, in fact, schedule, and attend, a follow-up appointment. Id. at 260. The record shows on July 12, 2004, Blakeman had an appointment with a cardiologist whom Dr. Vaughn-Whitley had referred. Id. Moreover, the ALJ noted although Blakeman testified he generally sees a doctor every month for his IHSS and his AICD, the record indicated otherwise. Id. at 25. The record, however, shows Blakeman was seen by doctors on August 11, September 11, October 13, and November 5, 2003, and January 22, 28, February 26, April 27, July 12, and October 12, 2004. See id. at 219, 221-22, 223, 225, 226-27, 229, 235-48, 254, 260. This record is entirely consistent with Blake-man’s testimony about generally going to the doctor every month but, while at the time of the ALJ hearing, it had been about three months.

The ALJ also relied on some reports in the record of Blakeman refusing to go to the emergency room (after nurses instructed him to do so over the phone) and missing appointments. Id. at 240. The record shows Blakeman refused to go to the emergency room and missed appointments due to a lack of insurance. The nursing notes from Dr. Vaughn-Whitley’s examination of Blakeman on August 8, 2003, state “[p]t. has ref[used] numerous times to go to ER [and] also has cancelled] numerous AICD appt. here due to lack of ins[urance] or T-19.” Id. The “T-19” notation is a reference to authorization under Title 19 of the SSA, or Medicaid.

An ALJ “must not draw any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering ... information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment,” such as “[t]he individuals [inability] to afford treatment [or obtain] access to free or low-cost medical services.” Soc. Sec. Reg. 96-7p. Here, the record provided information explaining Blakeman’s missed appointments were due to a lack of insurance or guarantee he would be reimbursed by Medicaid. It was, therefore, error for the ALJ to discount the credibility of Blakeman’s statements of fatigue and dizziness based on refusal to go to the emergency room and his missed appointments.

The ALJ also pointed to Blakeman’s failure to pursue physical therapy for his shoulder injury, stating, “No records indicate claimant complied with a January 2004 recommendation [from a Dr. Kevin Brown that] he pursue physical therapy.” R. at 22. This is false. Dr. Vaughn-Whitely noted in February 2004, “He’s been doing [physical therapy] on his shoulder in Belle Fourche [Family Medical Center].” Id. at 254. Thus, the record actually demonstrates the opposite of what the ALJ concluded.

Finally, the ALJ attacked the credibility of Blakeman’s statements about his fatigue and dizziness on the ground he continued to smoke despite complaining of shortness of breath. The ALJ cited Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir.1997) and Sias v. Secretary of Health and Human Services, 861 F.2d 475 (6th Cir.1988) (per curiam), for the proposition Blakeman failed to heed the advice of his doctors. There is no evidence in the record which shows Blakeman’s doctor ever expressly told him to quit smoking. On July 16, 2001, there is one notation from Dr. Paul Johnson, a family practice doctor: “Meds. Wellbutrin 150 mg b.i.d. for stopping *889smoking.” R. at 158. But there is no consistent recommendation that Blakeman take Wellbutrin, an antidepressant, and no prescription for Wellbutrin within two years of the hearing before the ALJ. Further, there is nothing in the record suggesting smoking cessation would alleviate any of the symptoms suffered by Blake-man. The information in the record about IHSS does not list smoking cessation under its “General Advice” category, despite advising a person with IHSS to engage in “sensible eating habits” and alcohol moderation. Id. at 282.

In addition to the lack of evidence in the record linking any of his symptoms with smoking, the record shows Blakeman had quit smoking prior to the hearing before the ALJ. In July 2002, he reported smoking what Dr. Vaughn-Whitley' characterized as “only” five cigarettes a day. Id. at 230. On October 1, 2003, he reported he was not smoking but was exposed to second hand smoke on occasion. Id. at 213. Given Blakeman did seek treatment and follow the treatment regimen for his underlying heart condition, his “failure to stop smoking ... [does] not show that [his] complaints were not ' credible.” O’Donnell v. Barnhart, 318 F.3d 811, 819 (8th Cir.2003).

II

Much of the evidence cited by the ALJ to discredit Blakeman’s subjective complaints of fatigue and dizziness is not supported by the record. In fact, some of the evidence actually bolsters the conclusion Blakeman is telling the truth. Here, “[t]he record as a whole,' including [Blake-man’s] testimony and all of the medical records, corroborates [Blakeman’s] subjective complaints in such a qualitative manner as to negate the inconsistencies pointed out by the ALJ.” Holmstrom v. Massanari, 270 F.3d 715, 722 (8th Cir.2001). The activities Blakeman had been performing, including work he may have done on his vehicle in 2001, do not demonstrate his testimony as to fatigue and dizziness was untruthful. See, e.g., Draper v. Barnhart, 425 F.3d 1127, 1131 (8th Cir.2005) (noting discounting claimant’s subjective complaints not appropriate merely because her “activities of daily living involved some light exertional activities, such as household chores, laundry, grocery shopping, mowing, and other chores”); cf. Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir.1996) (making bed, preparing food, performing light housekeeping, grocery shopping, and visiting friends not substantial evidence claimant could perform competitive work); Rainey v. Dep’t of Health & Human Servs., 48 F.3d 292, 203 (8th Cir.1995) (finding washing dishes, light cooking, reading, watching television, visiting mother, and driving to shop for groceries were not substantial evidence of the ability to do full-time, competitive work). Therefore, the decision of the district court should be reversed.

The only remaining question, then, is whether the case should be remanded to the ALJ for further proceedings consistent with the court’s opinion or with instructions to award benefits. Where the total record convincingly establishes disability and further hearing would merely delay the receipt of benefits, this court has ordered the immediate award of benefits without further proceedings. See, e.g., Cline v. Sullivan, 939 F.2d 560, 569 (8th Cir.1991); Jeffery v. Sec’y of Health & Human Servs., 849 F.2d 1129, 1133 (8th Cir.1988); Beeler v. Bowen, 833 F.2d 124, 127-28 (8th Cir.1987). Where “the hypothetical question posed to the vocational expert was inextricably intertwined with the ALJ’s credibility findings, perforce there must be posed to a vocational expert hypothetical questions based on findings entered after a consideration of the evidence that the ALJ failed to take into *890account.” Baumgarten, 75 F.3d at 370. In this case, the ALJ did pose an alternative hypothetical question to the vocational expert as to whether any jobs would exist in significant numbers in the national or regional economy that a person who needed to lie down during the day could perform, “as was — as you heard from the Claimant’s testimony.” R. at 339-340. The vocational expert responded, “They would not, no.” Id. at 340. Given this testimony, I think the record is clear the SSA did not meet its burden of showing Blakeman could still work and remand for further proceedings is, therefore, unnecessary. Moreover, the record clearly demonstrates the onset date of Blakeman’s disability was August 1, 2003. Therefore, I would remand to the ALJ with instructions for an award of benefits from August 1, 2003, going forward.

Ill

Because I do not view the ALJ’s credibility assessment as being supported by the record and because I find such record establishes Blakeman became disabled in August of 2003,1 respectfully dissent.

. The majority also maintains “[t]he issue is not whether Blakeman was credible in testifying that he naps each weekday afternoon he is not working,” but "whether his heart condition compels him to nap each afternoon.” Ante at 882. I fail to see how this issue is relevant to our task in this case, which is to determine whether substantial evidence in the record supports the ALJ's stated reasons for discounting Blakeman’s credibility. Here, the ALJ’s credibility was not based on finding Blakeman's heart condition did not compel him to nap each afternoon.