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The Honorable Robert E. Larsen, United States Magistrate Judge for the

Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-2578

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James Harvey, *

*

Plaintiff - Appellant, *

* Appeal from the United States 

v. * District Court for the Western 

* District of Missouri.

Jo Anne B. Barnhart, Commissioner, *

Social Security Administration, *

*

Defendant - Appellee. *

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Submitted: January 16, 2004

 Filed: May 24, 2004 

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Before MELLOY, BRIGHT, and HANSEN, Circuit Judges.

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MELLOY, Circuit Judge.

James Harvey appeals the district court’s1

 order affirming the Commissioner’s

determination he retained the residual functional capacity to perform his past relevant

work and, therefore, was not disabled. We affirm.
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An administrative law judge (“ALJ”) determined that Harvey suffered from

various mental and physical impairments that, collectively, were severe. However,

the ALJ determined that these impairments neither met nor were equivalent to a listed

impairment. The ALJ also determined that Harvey and Harvey’s wife were not

credible and that Harvey exaggerated his symptoms as well as his physical and mental

limitations. Reviewing records of objective medical tests, reports from treating

physicians, testimony from consulting physicians and a psychiatrist (only some of

whom personally examined Harvey), testimony from a vocational expert, and

testimony regarding Harvey’s work history, daily activities and limitations, the ALJ

determined that Harvey retained the residual functional capacity to perform his past

relevant work as a security guard. The Social Security Appeals Council denied

further review, and the ALJ’s opinion became the Commissioner’s final agency

action. The district court affirmed. Harvey appeals.

We review the record as a whole and must affirm the Commissioner’s findings

if supported by substantial evidence. See Cunningham v. Apfel, 222 F.3d 496, 500

(8th Cir. 2000) (standard of review). In our review, we must consider evidence that

is contrary to, as well as evidence that supports, the Commissioner’s findings. Id.

Here, substantial evidence in the record as a whole clearly supports the

Commissioner’s credibility and residual functional capacity determinations. 

A consulting psychiatrist who examined but did not treat Harvey stated, inter

alia, “symptom magnification syndrome”; “[q]uery secondary gain and/or

malingering”; “[i]t is difficult to predict this individual’s abilities to perform workrelated functions based upon objective findings”; and “I doubt that he would be able

to remain at work and remain productive during the course of an eight hour day.”

This opinion, which clearly supports the Commissioner’s credibility determination,

was equivocal at best regarding Harvey’s residual functional capacity. Nevertheless,

Harvey points to this opinion as evidence that the record shows he does not possess

the residual functional capacity to perform his past work as a security guard. This
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and other evidence that Harvey cites in support of his position is largely based on his

own subjective complaints.

Harvey’s medical records showed, however, that his symptoms were basically

controlled or controllable. His medical records showed some limitation in ability to

lift and use his right hand, but did not contain any objective evidence of limitations

that were as severe as those Harvey claimed in his application for benefits. The

medical records contained no objective basis for a finding that Harvey had memory

problems and contained only limited instances where Harvey claimed to have

memory difficulties. Harvey did not mention memory loss or other mental health

impairments on his application for benefits. 

Harvey’s treating physicians viewed him as not credible. They refused his

requests for powerful prescription pain killers, noted repeatedly that his complaints

were out of proportion with any identifiable medical causes, and recorded opinions

such as “[patient] reports pain out of proportion to physical findings. Will not refill

percocet, instruct [patient] to use Tylenol as needed”; “[patient] states that his Ultram

is not relieving his pain. [Patient] had an x-ray in February that found only mild

degenerative changes. . . . [patient] is a poor historian, as he changes his story

frequently and repeatedly asks the same questions. [Patient] admits to past crack,

cocaine, and PCP use and claims it has affected his memory”; “atypical presentation,

but [patient’s] history is so difficult to obtain with confidence”; and “Probable drug

seeking behavior. . . . I have explained to [patient] that I usually do not prescribe

such a high dose narcotic for joint pain. I reviewed recent X-ray of his right knee

which shows borderline [degenerative joint disease] changes only.” 

Finally, Harvey’s testimony before the ALJ was inconsistent with prior

statements to physicians, inconsistent with his employment record, and internally

inconsistent regarding his ability to perform various functions in daily life (reading,

lifting, sitting, standing, etc.). For example, although he claimed that he was unable
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to read, he claimed elsewhere that, because his impairments prevented him from

sleeping, he regularly arose at three in the morning to read the Bible until his wife

awoke hours later. Further, although he claimed he could not sit for more than thirty

to sixty minutes and although he claimed the need to use crutches or a non-prescribed

walker, he claimed elsewhere that he participated in activities that required greater

lengths of sitting and that he could walk a mile, rest, and then walk another mile. 

We write further only to address Harvey’s specific challenges to the ALJ’s

reliance on a particular, non-examining consulting physician and a vocational expert.

Harvey argues first that the ALJ should not have relied on the opinion of consulting

physician Dr. Sophia Kahn in light of the fact that she merely reviewed medical

records and failed to personally examine Harvey. It is true that we do not consider

the opinions of non-examining, consulting physicians standing alone to be

“substantial evidence.” See Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999)

(finding that, where no other evidence supported an ALJ’s residual functional

capacity determination, the opinion of a non-examining consulting physician was not

“considered substantial evidence in the face of the conflicting assessment of a treating

physician”). However, the ALJ in this case did not rely solely on Dr. Kahn’s opinion

to reach his conclusions. Rather, the ALJ relied on Dr. Kahn’s opinion as one part

of the record, which, as a whole and as described above, clearly provides substantial

support for his findings.

 

Harvey also argues that Dr. Kahn was unqualified to offer an opinion on issues

of mental health and that, even if the ALJ considered the rest of her opinion, it was

error to admit Dr. Kahn’s testimony regarding Harvey’s mental impairments. While

it is true Dr. Kahn was an internist rather than a psychiatrist, she testified that she

underwent “regular” psychiatric training, treated psychiatric problems as a part of her

practice, and previously assessed patients’ difficulties in the areas of concentration.

Further, the ALJ’s reliance on her testimony regarding mental health issues was

limited. Dr. Kahn testified, essentially, that there was no objective basis in the
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medical records for Harvey’s subjective complaints of memory problems. Because

her testimony regarding mental health issues was limited, and because she did possess

adequate qualifications by virtue of education and experience, we reject Harvey’s

attack on her qualifications.

Finally, we reject Harvey’s claim that the ALJ posed improper hypothetical

questions to the vocational expert. Harvey correctly notes that, for a vocational

expert’s opinion to be relevant, an ALJ must accurately characterize a claimant’s

medical conditions in hypothetical questions posed to the vocational expert.

See Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994) (stating that “[u]nless the

hypothetical question comprehensively describes the limitations on a claimant’s

ability to function, a vocational expert will be unable to accurately assess whether

jobs do exist for the claimant”). Harvey, however, fails to show that the ALJ in this

case mischaracterized Harvey’s symptoms and limitations. The fact that the ALJ

omitted from his hypothetical questions those aspects of Harvey’s subjective

complaints that the ALJ considered non-credible does not render the questions faulty.

See Roberts v. Heckler, 783 F.2d 110, 112 (8th Cir. 1985) (noting that “the

hypothetical is sufficient if it sets forth the impairments which are accepted as true

by the ALJ”). 

We affirm the judgment of the district court.

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