United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-1512

___________

Stefania Harris, *

*

Appellant, *

* Appeal from the United States 

v. * District Court for the Western 

* District of Missouri.

Jo Anne B. Barnhart, Commissioner, *

Social Security Administration *

*

Appellee. *

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Submitted: November 21, 2003

 Filed: January 30, 2004

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Before MELLOY, RICHARD S. ARNOLD, and COLLOTON, Circuit Judges.

___________

COLLOTON, Circuit Judge.

Stefania Harris applied for disability insurance benefits and supplemental

security benefits under Titles II and XVI of the Social Security Act. The

Commissioner of the Social Security Administration denied Harris's application. An

administrative law judge ("ALJ") determined that Harris's history of diabetes did not

meet the criteria for presumptive disability under 20 C.F.R. Part 404, Subpart P,

Appendix 1, and that Harris was "not disabled" within the meaning of the Social
1 The Honorable Gary A. Fenner, United States District Judge for the Western

District of Missouri.

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Security Act during the period for which she sought benefits. The Social Security

Appeals Council denied review, and the district court1

 affirmed the decision of the

Commissioner. We affirm.

I.

We review de novo the district court's decision to uphold the denial of social

security benefits. Pettit v. Apfel, 218 F.3d 901, 902 (8th Cir. 2000). Our task is to

consider whether the Commissioner's decision is supported by substantial evidence

in the record as a whole. Chamberlain v. Shalala, 47 F.3d 1489, 1493 (8th Cir.

1995). We consider both evidence that supports and detracts from the ALJ's decision,

but even if inconsistent conclusions may be drawn from the evidence, the decision

will be affirmed where substantial evidence on the record as a whole supports the

ALJ's decision. Id. We do not re-weigh the evidence presented to the ALJ, and it is

"the statutory duty of the ALJ, in the first instance, to assess the credibility of the

claimant and other witnesses." Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995)

(internal quotation and citation omitted).

II.

The Commissioner follows a five-step process to determine whether a claimant

is disabled. See generally 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137,

140-42 (1987); Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998). At step two, the

ALJ hearing the case must determine whether the claimant has a medically severe

impairment or combination of impairments. If the impairment is severe, then the ALJ

proceeds to step three to determine whether the impairment is equal to an impairment

listed by the Social Security Administration as precluding substantial gainful activity.
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For a claimant to show that her impairment matches a listed impairment, she must

show that she meets all of the specified medical criteria. Deckard v. Apfel, 213 F.3d

996, 997 (8th Cir. 2000).

Harris argues the ALJ incorrectly found at step three that she did not meet the

criteria for "nephrotic syndrome," as described at 20 C.F.R. Part 404, Subpart P,

Appendix 1, § 6.06B. To meet the requirements of section 6.06B, the medical

evidence must show, among other things, "nephrotic syndrome," with "significant

anasarca," that has persisted "for at least three months despite prescribed therapy."

Id. Anasarca is a generalized infiltration of edema fluid into subcutaneous connective

tissue. Stedman's Medical Dictionary 70 (27th ed. 2000). Edema is the accumulation

of an excessive amount of watery fluid in cells or intercellular tissues. Id. at 566-67.

In addition, the medical record must include the results of laboratory tests

documenting proteinuria of 10 grams per 24 hours or greater. 20 C.F.R. Part 404,

Subpart P, Appendix 1, § 6.06B.

Harris has not pointed to evidence showing that she satisfies the specific

medical criteria for this listing. In support of her claim, Harris offers only her

diagnoses of diabetic nephropathy and renal insufficiency. These diagnoses are not

by themselves sufficient to demonstrate that Harris's condition meets the requisite

medical criteria. We agree with the district court that there is no evidence that Harris

suffered from significant anasarca. The only evidence of record regarding the

presence of edema indicates that Harris had "rare" or "trace" edema in her extremities.

(Administrative R. 225, 297). On other occasions, examinations found that Harris

had no edema at all. (R. 219, 226, 266, 267, 297). We further note that results of

tests conducted at the University of Kansas Medical Center in May 2001 show that

Harris did not meet the criterion regarding proteinuria listed at Section 6.06B. (R.

267). Accordingly, there is substantial evidence to support the ALJ's determination

that Harris did not meet the requirements for presumptive disability.
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III.

At the fourth step of the five-step process, the ALJ was required to assess the

claimant's residual functional capacity, see Young v. Apfel, 221 F.3d 1065, 1069 n.5

(8th Cir. 2000), which is defined as what a claimant "can still do despite [his or her]

limitations." 20 C.F.R. § 404.1545(a)(1). The RFC is a function-by-function

assessment of an individual's ability to do work-related activities based upon all of

the relevant evidence. Depover v. Barnhart, 349 F.3d 563, 565 (8th Cir. 2003). Once

the RFC is determined, the issue at step five is whether the claimant is able to perform

other work in the national economy in view of her age, education, and work

experience. E.g., Bowen, 482 U.S. at 142. 

Harris contends that the ALJ erred at step four in determining her RFC,

because the ALJ failed to consider properly her vision loss, headaches, and fatigue.

She also objects to the ALJ's finding at step five that she was able to work in the

national economy in such positions as a cashier, duplicating machine operator, or

laundry worker/folder. Harris complains that the determination of her ability to work

was based on a flawed hypothetical that the ALJ promulgated to a vocational expert.

We conclude that the RFC determined by the ALJ was supported by substantial

evidence. The ALJ did include Harris's vision loss in his findings, noting that Harris's

best corrected visual acuity was 20/100 in her right eye, and 20/50 in her left eye.

The ALJ found that because of her vision, Harris should avoid driving. 

The ALJ's analysis of Harris's vision is supported by the record. A consultative

ophthalmologist reported that Harris's left eye had "excellent vision," with "no active

diabetic retinopathy," and that Harris's eyesight would not result in work-related

limitations on sitting, standing, walking, lifting, carrying, handling objects, hearing,

speaking, and traveling. (R. 230). Harris acknowledged in testimony that she could

see clearly with glasses, and that she reads a newspaper. (R. 350-52). Harris cites no
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evidence from treating physicians that would require greater limitations due to

eyesight, and we are not persuaded that the ALJ's conclusion is unsupported by

substantial evidence.

The ALJ also considered Harris's complaints of headache and fatigue, but

found that there was "no substantiation for any debilitation from headaches," and "no

basis for significant fatigue as long as her blood glucose is reasonably well

controlled." We conclude that the ALJ's analysis considered a variety of factors

consistent with Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984), and we are

not convinced that the ALJ's conclusions regarding Harris's subjective complaints fail

the substantial evidence test.

The record provides adequate support for the ALJ's determination to reject

Harris's subjective complaint of debilitating headaches and fatigue. A consulting

physician who examined Harris in 1997 concluded that while Harris reported chronic

headaches, "she has not been limited by them over the years and I would suspect that

these are not limiting either." (R. 226). Indeed, Harris testified that she worked for

an average of 24 hours per week during 2001. (R. 347, 356). See Browning v.

Sullivan, 958 F.2d 817, 821 (8th Cir. 1992) (part-time work may demonstrate ability

to perform substantial gainful employment). It was also not unreasonable for the ALJ

to note that Harris's daily activities, including part-time work, cleaning house,

attending church, and dining out with her boyfriend, were inconsistent with her claim

of disabling pain. See Riggins v. Apfel, 177 F.3d 689, 692-93 (8th Cir. 1999); Haynes

v. Shalala, 26 F.3d 812, 814-15 (8th Cir. 1994). 

The history of Harris's treatment for headaches also supported the ALJ's

credibility determination. The ALJ was presented with evidence that in recent years,

Harris took only over-the-counter medication for her headaches. See Riggins, 177

F.3d at 692-693 (mere use of non-prescription pain medication is inconsistent with

disabling pain); Nelson v. Sullivan, 966 F.2d 363, 367 (8th Cir. 1992) (same). Harris
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suggests that her failure to use stronger medication was due to the prohibitive expense

of visits to an emergency room. If a claimant truly has no access to health care, then

the absence of such care would not tend to disprove her subjective complaints of pain.

But in evaluating the credibility of Harris's subjective complaints, it was permissible

for the ALJ to consider the lack of evidence that Harris had sought out stronger pain

treatment available to indigents. Riggins, 177 F.3d at 693; Murphy v. Sullivan, 953

F.2d 383, 386-87 (8th Cir. 1992). Accordingly, we believe the evidence as a whole

provides adequate support for the ALJ's rejection of Harris's claim of debilitating

headaches.

In her testimony before the ALJ, Harris based her claim of fatigue largely on

severe headaches. (R. 257). Given our conclusion that the ALJ properly rejected the

claim of debilitating headaches, it follows that the record also supports the ALJ's

finding that Harris did not suffer from significant fatigue as a result of such

headaches. Harris claims it is obvious that fatigue arising from her condition of

proteinuria will result in the need to lie down for several hours each day. We think

whether there is a "need" to lie down is a medical question that requires medical

evidence. The record does not contain any evidence from a physician that Harris's

medical condition requires her to lie down for hours each day, and it does contain

evidence that seems inconsistent with Harris's subjective claims. We cannot fault the

ALJ for relying on testimony of the independent medical advisor that the record did

not support a finding of significant fatigue.

Harris attacks the ALJ's reliance on the independent medical advisor who

testified at the hearing. She asserts the advisor testifies frequently in disability

benefit proceedings, that he usually opines that the claimant is not disabled, and that

his opinion has been rejected by courts in other cases. (The Commissioner notes that

courts have affirmed other decisions in which this same advisor was a testifying

expert.) We believe the credibility of any such medical advisor should be evaluated

on a case-by-case basis, depending on the evidence of record in the proceeding. It is
2

 Our cases are inconsistent on where the burden of persuasion lies during step

five of the Commissioner's process. Compare Young v. Apfel, 221 F.3d 1065, 1069

n.5 (8th Cir. 2000) ("burden of production" shifts to Commissioner, but "burden of

persuasion" remains with claimant) and Roth v. Shalala, 45 F.3d 279, 282 (8th Cir.

1995) (same) with Griffon v. Bowen, 856 F.2d 1150, 1153-54 (8th Cir. 1988)

("burden of persuasion" shifts to Secretary). See also, e.g., Bowen v. Yuckert, 482

U.S. at 146 n.5 ("the Secretary bears the burden of proof at step five"); Singh v. Apfel,

222 F.3d 448, 451 (8th Cir. 2000) (stating that "burden of proof" shifts to

Commissioner, without specifying burden of "production" or "persuasion"); James,

Burdens of Proof, 47 Va. L. Rev. 51, 51 (1961) ("burden of proof" is used in our law

to refer to "two separate and quite different concepts": the burden of persuasion and

the burden of production) (quoted in Omaha Indian Tribe v. Wilson, 575 F.2d 622,

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well settled that an ALJ may consider the opinion of an independent medical advisor

as one factor in determining the nature and severity of a claimant's impairment. See,

e.g., Freeman v. Apfel, 208 F.3d 689, 692 (8th Cir. 2000); 20 C.F.R.

§§ 404.1527(f)(2)(iii), 416.927(f)(2). Harris's counsel did not question the

qualifications or competence of the medical advisor during the administrative hearing

when there was an opportunity to make a record on such things, and we are not

sympathetic to an effort to impugn the advisor's credibility with collateral materials

during judicial review. We find nothing in these administrative proceedings from

which to conclude that the medical advisor was an incompetent witness, or that his

opinion was contradicted by credible evidence from treating physicians or otherwise

inconsistent with the record.

IV.

Finally, Harris argues that the ALJ erroneously concluded at step five that she

is capable of performing work that exists in significant numbers within the regional

and national economies. She contends that the hypothetical situation presented to the

vocational expert at the hearing did not accurately reflect the limitations on her ability

to work.2
633 n.22 (8th Cir. 1978), rev'd on other grounds, 442 U.S. 653 (1979)). The

Commissioner recently promulgated a new rule designed to clarify that although a

burden of production shifts to the Commissioner at step five, the ultimate burden of

persuasion remains with the claimant. 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003).

We need not opine regarding the location of the burden of persuasion prior to the new

rule, because we conclude that even if the Commissioner bore that burden at step five,

there is substantial evidence to support her decision.

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We conclude that the hypothetical accurately reflects Harris's residual

functional capacity as found by the ALJ. The question included limitations on

Harris's vision, stating that Harris "should not have a clerical type job where she had

to read extensively or do any type of fine manipulation, because of her visual acuity

or lack thereof . . . ." We perceive no error in the ALJ's failure to include Harris's

subjective complaints of headaches and fatigue in the hypothetical, because we have

upheld the ALJ's findings on those issues. See Depover, 349 F.3d at 567; Riggins,

177 F.3d at 694. We note, moreover, that the hypothetical did include some

limitations based on fatigue, including that Harris could only stand for four hours in

an eight-hour day, that she could only "occasionally walk on a level surface 1 to 2

blocks," and that she should avoid uneven terrains and surfaces.

Having employed a hypothetical that was supported by substantial evidence in

the record as a whole, the ALJ was entitled to rely upon the opinion of the vocational

expert that there are a significant number of jobs in the economy that Harris could

perform. Weiler v. Apfel, 179 F.3d 1107, 1111 (8th Cir. 1999). Accordingly, the

judgment of the district court is affirmed.