United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3134

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Rodney D. Boettcher, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * Northern District of Iowa.

*

Michael J. Astrue, Commissioner of * 

Social Security, *

*

Appellant. *

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Submitted: May 12, 2011

 Filed: August 30, 2011

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Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

The Commissioner of Social Security appeals the district court’s judgment

reversing the Commissioner’s decision to deny Rodney D. Boettcher supplemental

security income (SSI) benefits. Because the Commissioner’s decision was supported

by substantial evidence, we reverse and remand.

I.

Boettcher applied for supplemental security income under Title XVI of the

Social Security Act, 42 U.S.C. § 1382. His application was denied initially and on
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reconsideration. Boettcher requested a hearing before an Administrative Law Judge

(ALJ). 

At the hearing, the ALJ received testimony from Boettcher, Boettcher’s mother,

and a vocational expert. The ALJ applied the five-step sequential evaluation for

determining whether a claimant is disabled, 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4). At step one of the sequential evaluation, the ALJ found that Boettcher

had not engaged in substantial gainful activity since May 11, 2005. At step two, the

ALJ found that Boettcher experiences severe physical impairments in the form of

“degenerative disc disease in the lumbosacral spinel; the residuals of fusion surgery

in the lumbosacral spine; and degenerative joint disease in the right knee.” At step

three, however, the ALJ decided that Boettcher’s severe impairments did not meet or

equal any of the listed impairments. At step four, after discounting Boettcher’s

testimony, the ALJ found that Boettcher has the residual functional capacity (RFC)

to perform sedentary work, as long as he has the option of alternating between sitting

and standing on the job. Finally, at step five, the ALJ concluded that although

Boettcher is incapable of performing his past work as a meat trimmer, production

welder, maintenance mechanic, and construction worker, he can perform other jobs

that exist in the economy. The ALJ therefore concluded that Boettcher was not

disabled at any time from the alleged onset date through the date of the decision. The

Appeals Council declined to hear the case, making the ALJ’s decision the final

decision of the Commissioner. 

Boettcher appealed the Commissioner’s decision to the district court, arguing

that the ALJ erred in not finding that his impairments met or equaled one of the listed

impairments at step three and erred in discounting his subjective complaints. The

district court reversed, holding that because the ALJ erroneously discounted

Boettcher’s testimony, the ALJ’s determination of Boettcher’s RFC was not supported

by substantial evidence. The district court concluded that had the ALJ correctly

credited Boettcher’s testimony, Boettcher’s RFC would have additionally included the
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need to lie down often and to have frequent, unscheduled breaks. Based on the

testimony from the vocational expert that these two additional restrictions would make

Boettcher unemployable, the district court concluded that additional proceedings

would only delay his eventual receipt of disability benefits. The district court reversed

the Commissioner’s decision and directed an award of benefits. 

The Commissioner appeals the district court’s decision, arguing that the ALJ

permissibly discounted Boettcher’s testimony and that the district court substituted its

own judgment for that of the ALJ in concluding otherwise. In the alternative, the

Commissioner asserts that even if the ALJ erred, the district court should have

remanded for additional proceedings and erred in directing the entry of an award of

benefits. Boettcher reasserts on appeal that the ALJ also erred at step three by finding

that his severe impairments did not meet or equal one of the listed impairments.

II.

We review de novo a district court’s decision upholding or reversing the denial

of social security benefits. Reutter ex rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th

Cir. 2004). We will affirm the ALJ’s decision if it is supported by substantial

evidence in the record as a whole. Harris v. Barnhart, 356 F.3d 926, 928 (8th Cir.

2004). Substantial evidence means less than a preponderance but enough that a

reasonable person would find it adequate to support the decision. Guilliams v.

Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). We consider both evidence that detracts

from the decision and evidence that supports it. Karlix v. Barnhart, 457 F.3d 742, 746

(8th Cir. 2006). We will not reverse simply because some evidence supports a

conclusion other than that reached by the ALJ. Pelkey v. Barnhart, 433 F.3d 575, 578

(8th Cir. 2006). Likewise, “we defer to the ALJ’s determinations regarding the

credibility of testimony, so long as they are supported by good reasons and substantial

evidence.” Id. (quoting Guilliams, 393 F.3d at 801).
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III.

Boettcher contends that at step three, the ALJ erred in concluding that

Boettcher’s impairments did not meet or exceed one of the listed impairments and in

not explaining the conclusion. There is no error when an ALJ fails to explain why an

impairment does not equal one of the listed impairments as long as the overall

conclusion is supported by the record. See Pepper ex rel. Gardner v. Barnhart, 342

F.3d 853, 855 (8th Cir. 2003); Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir.

2001). In order to prove that his back pain met the listed impairment for “disorders

of the spine,” Boettcher was required to show not only that his degenerative disc

disease is a condition “resulting in compromise of the spinal cord,” but also that he

meets one of the specific symptom and documentation requirements under subsections

A, B, or C. 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 1.04, 1.04(A), 1.04(B), 1.04(C); see

Jones v. Astrue, 619 F.3d 963, 969 (8th Cir. 2010) (stating the claimant must show

that his impairment matches all of the specified medical criteria of a listing). There

was evidence in the record, however, that Boettcher did not suffer from the sensory

or reflex loss required under subpart A; Boettcher did not produce the necessary

documentation to show he suffered from spinal arachnoiditis required under subpart

B; and Boettcher’s difficulty in walking is not the type of extreme limitation on

ambulation required under subpart C. Therefore, ample evidence exists in the record

to support the ALJ’s conclusion that Boettcher’s back pain was not an impairment

matching the listing for “disorders of the spine.” 

The ALJ also did not err in discounting Boettcher’s testimony. Before

discrediting subjective complaints of pain and limitation, the ALJ must consider all

of the evidence, including the claimant’s work record and daily activity; the intensity,

duration, and frequency of the claimant’s pain and the conditions causing and

aggravating the pain; the effectiveness of medication; and any functional limitations.

Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir. 1984) (per curiam order); see

also Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011). Here, the ALJ explicitly
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discredited Boettcher’s testimony and gave good reasons for doing so. See Finch v.

Astrue, 547 F.3d 933, 935-36 (8th Cir. 2008) (stating the standard for deferring to an

ALJ’s credibility determination). The ALJ considered that: (1) Boettcher gave

conflicting statements about whether he stopped working because of back pain; (2)

Boettcher testified during the hearing to severe physical limitations, but the medical

record shows that he did significant car repairs on three separate occasions in 2006

and 2007; (3) Boettcher gave inconsistent statements about the intensity and

consistency of his back and hip pain; (4) Dr. Rachel Ramirez opined that opiate pain

killers and physical therapy might relieve some of his pain if Boettcher would stop his

recreational drug use and consistently attend physical therapy; and (5) Dr. Ramirez

opined that Boettcher could work in a job in which he could change positions and

move freely. We conclude that valid reasons supported the ALJ’s adverse credibility

determination. See id.; Watkins v. Astrue, 414 F. App’x 894, 895-96 (8th Cir. 2011)

(unpublished per curiam).

Further, the ALJ’s RFC determination was supported by substantial evidence.

Having discounted Boettcher’s testimony, the ALJ relied on the opinions of

Boettcher’s examining doctors, Dr. Thomas Schryver and Dr. Ramirez, to determine

Boettcher’s limitations. Dr. Schryver opined in 2005 that Boettcher could handle mild

to moderate labor activities and that he could both sit and stand if he was allowed to

get up and move around throughout the day. Similarly, in 2007, Dr. Ramirez testified

that Boettcher could be employed in a field where he could change positions and

move freely. Although Dr. Ramirez stated that Boettcher would have to take breaks

more frequently than people without Boettcher’s injuries, Dr. Ramirez never specified

the exact frequency or opined whether Boettcher needed to have the flexibility to take

unscheduled breaks. We conclude that substantial evidence in the record supported

the ALJ’s determination that Boettcher could perform sedentary work as long as he

had the option of alternating between sitting and standing.
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IV.

Finding that the ALJ’s decision is supported by substantial evidence, we reverse

the district court’s decision and remand for the district court to affirm the decision of

the Commissioner.

BYE, Circuit Judge, dissenting.

I agree with the district court’s decision to reverse the Administrative Law

Judge’s (ALJ) denial of supplemental security income benefits to Rodney Boettcher.

As set forth in the district court’s thorough memorandum opinion, the record

overwhelmingly supports a finding of disability. Because the ALJ improperly

discredited Boettcher’s subjective complaints of pain and did not fully account for his

asserted limitations in determining Boettcher’s residual functional capacity (RFC), I

respectfully dissent from the majority’s decision to reverse the district court.

“Before determining a claimant’s RFC, the ALJ first must evaluate the

claimant’s credibility.” Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007). To do

so, the ALJ considers: “(1) the claimant’s daily activities; (2) the duration, intensity,

and frequency of pain; (3) the precipitating and aggravating factors; (4) the dosage,

effectiveness, and side effects of medication; (5) any functional restrictions; (6) the

claimant’s work history; and (7) the absence of objective medical evidence to support

the claimant’s complaints.” Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009)

(citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). “When rejecting a

claimant’s complaints of pain, the ALJ must make an express credibility

determination, detailing the reasons for discounting the testimony, setting forth the

inconsistencies, and discussing the Polaski factors.” Dipple v. Astrue, 601 F.3d 833,

837 (8th Cir. 2010). “[A]n ALJ may not discount a claimant’s subjective complaints

solely because the objective medical evidence does not fully support them.” Wiese

v. Astrue, 552 F.3d 728, 733 (8th Cir. 2009). “If an ALJ explicitly discredits the
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claimant’s testimony and gives good reason for doing so, we will normally defer to

the ALJ’s credibility determination.” Juszczyk v. Astrue, 542 F.3d 626, 632 (8th Cir.

2008) (internal quotation marks and citation omitted).

In this case, the ALJ’s credibility assessment is not supported by substantial

evidence in the record as a whole. Boettcher testified to three asserted limitations –

his need to frequently alternate positions, his need to lie down when he becomes too

active, and his need to take frequent breaks. Despite these uncontradicted limitations,

the ALJ concluded Boettcher’s “statements concerning the intensity, persistence and

limiting effects of these symptoms are not credible to the extent they are inconsistent

with the residual functional capacity assessment.” In particular, the ALJ only

accounted for the first limitation concerning Boettcher’s need to change positions

frequently, while rejecting his needs to lie down and take frequent breaks–each of

which the vocational expert testified would likely preclude employment.

Yet, many of the ALJ’s stated reasons for discounting Boettcher’s subjective

complaints are unsupported by the record, if not completely contradicted by it. For

instance, the ALJ cited Boettcher’s failure to seek treatment and report his pain

consistently, but the record shows otherwise. See, e.g., Social Security Tr. at 150

(noting Boettcher was “plagued by persistent low back pain that radiates into his right

buttock and his right thigh”); id. at 158 (complaining of numbness in hands and pain

shooting down from back to feet). Accordingly, the medical evidence does not

support the ALJ’s finding. See Bowman v. Barnhart, 310 F.3d 1080, 1083 (8th Cir.

2002) (concluding the ALJ erred in discounting the claimant’s allegations of disabling

pain because the medical evidence did not support the ALJ’s finding). Similarly, the

ALJ’s reliance on Boettcher’s failure to circle “backache” on an intake form in

January 2007 is explained by Boettcher’s repeated statements at other portions of the

record where he indicated his inability to fill out such forms, particularly when

experiencing pain. See, e.g., Social Security Tr. at 73 (noting he “can’t never [sic] fill
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out stuff like this or applications in order” and he “always catch[es] [himself] skipping

over [a] question even if it is a yes or no answer”).

Moreover, the ALJ cited a few isolated incidences where Boettcher performed

work on vehicles, which was his hobby, to conclude Boettcher was inconsistent in his

testimony about his symptoms and limitations. Contrary to the ALJ’s finding, these

incidents do not show Boettcher was inconsistent in his testimony, nor do they

demonstrate he was able to perform work on a daily basis. “We have long stated that

to determine whether a claimant has the residual functional capacity necessary to be

able to work we look to whether [he] has ‘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.’” Forehand v. Barnhart, 364 F.3d 984, 988

(8th Cir. 2004) (quoting McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982)

(en banc)). Accordingly, “[t]his court has repeatedly stated that a person’s ability to

engage in personal activities such as cooking, cleaning or a hobby does not constitute

substantial evidence that he or she has the functional capacity to engage in substantial

gainful activity.” Wagner, 499 F.3d at 851 (internal quotation marks and citation

omitted). “In evaluating a claimant’s RFC, consideration should be given to the

quality of the daily activities and the ability to sustain activities, interests, and relate

to others over a period of time and the frequency, appropriateness, and independence

of the activities must also be considered.” Id. (internal quotation marks and citation

omitted) (emphasis in original). “Moreover, it is well-settled law that a claimant need

not prove [he] is bedridden or completely helpless to be found disabled.” Reed v.

Barnhart, 399 F.3d 917, 923 (8th Cir. 2005) (internal quotation marks and citation

omitted). Given our well-settled case law, the ALJ improperly relied on Boettcher’s

isolated engagement in his hobby to conclude he retained the ability to work. See,

e.g., Tilley v. Astrue, 580 F.3d 675, 681 (8th Cir. 2009) (“[The claimant’s] ability to

engage in some life activities, despite the pain it caused her, does not mean she

retained the ability to work as of the date last insured.”); Reed, 399 F.3d at 923
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(“Reed’s testimony about her symptoms hardly seems inconsistent with her ability to

perform such routine and simple daily living activities ‘to any degree.’”).

More importantly, the ALJ erred in assessing the physicians’ opinions. The

ALJ placed significant weight on these opinions, particularly the opinion of Dr.

Ramirez, but the ALJ misstated Dr. Ramirez’s conclusions, or at the very least, did not

fully account for her prognosis. Specifically, Dr. Ramirez stated Boettcher’s

“physical disability may be strong enough to warrant disability benefits” and “he

seems to be cooperating in his medical care and wants to better his chronic

conditions.” Social Security Tr. at 197. Dr. Ramirez also discussed Boettcher’s

chronic lower back pain, and noted “he will likely need frequent breaks during any

work day, and probably more frequently than what is usually offered for employees

who do not suffer conditions like his.” Id. The ALJ failed to even mention these

statements–all of which support Boettcher’s subjective complaints of pain.

To be sure, as the district court recognized, there were inconsistencies in the

record supporting the ALJ’s decision. For instance, Boettcher tested positive for

methamphetamine on a few occasions, and the time line he testified to concerning his

drug use was slightly off with the test results in the record. Moreover, there were

some inconsistencies relating to Boettcher’s reason for leaving his job in 2004 and the

reason for his knee injury. Importantly, however, these inconsistencies do not go

toward the existence, intensity, or duration of Boettcher’s pain. As discussed above,

Boettcher’s complaints of pain are consistent with the medical evidence in the record,

as well as the testimony of his mother. In sum, the record as a whole does not

demonstrate Boettcher was inconsistent in his testimony. See Brosnahan v. Barnhart,

336 F.3d 671, 677 (8th Cir. 2003) (reversing where the ALJ’s multiple reasons for

discrediting the claimant were unsupported by the record because the supposed

inconsistencies were not actually inconsistent and the ALJ relied on improper reasons

to hold otherwise); Holmstrom v. Massanari, 270 F.3d 715, 722 (8th Cir. 2001)

(“Although the record credited by the ALJ . . . may not contain sufficient objective
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medical evidence to support [the claimant’s] subjective complaints, the record as a

whole does support them.”) (emphasis in original). As a result, I do not believe

substantial evidence supports the ALJ’s credibility findings because the ALJ failed to

account for two of Boettcher’s asserted needs, or properly explain why these asserted

needs were not credible.

The ALJ’s failure to account for all of Boettcher’s asserted needs is fatal to the

subsequent RFC determination. “The ALJ should determine a claimant’s RFC based

on all relevant evidence including the medical records, observations of treating

physicians and others, and an individual’s own description of his limitations.” Moore,

572 F.3d at 523 (internal quotation marks and citation omitted). This court has held

on numerous occasions the ALJ need not include asserted limitations from a

claimant’s testimony in his RFC determination if the ALJ discredits such testimony.

See Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (“[T]he ALJ [is] not

obligated to include limitations from opinions he properly disregarded.”); Juszczyk,

542 F.3d 633 (holding the ALJ applied the correct legal standard in assessing the

claimant’s RFC because, while there was evidence showing the claimant would have

difficulties performing in stressful conditions, the evidence was in the form of the

claimant’s testimony, which was discredited, as well as the treating physician’s report,

which was not given controlling weight).

Having determined above the ALJ improperly discounted Boettcher’s

subjective complaints, I would conclude the RFC, which was based in part on

Boettcher’s subjective complaints, was also in error because it did not include all of

the asserted limitations. Boettcher’s credible complaints of pain demonstrated his

needs to alternate between standing and sitting frequently, to lie down frequently, and

to take frequent breaks. The ALJ erred by not including all of these limitations in the

RFC determination. See Holmstrom, 270 F.3d at 722 (“When [the claimant’s]

credible testimony as to his pain-induced limitations is properly considered, the RFC
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determined by the ALJ is insufficient [because] [i]t does not include all of [the

claimant’s] impairments, limitations and restrictions.”).

Likewise, the hypothetical posed to the vocational expert did not account for

all of Boettcher’s impairments. “A vocational expert’s testimony constitutes

substantial evidence when it is based on a hypothetical that accounts for all of the

claimant’s proven impairments.” Hulsey v. Astrue, 622 F.3d 917, 922 (8th Cir. 2010).

“Testimony based on hypothetical questions that do not encompass all relevant

impairments cannot constitute substantial evidence to support the ALJ’s decision.

Hypothetical questions should set forth impairments supported by substantial evidence

on the record and accepted as true and capture the concrete consequences of those

impairments.” Jones v. Astrue, 619 F.3d 963, 972 (8th Cir. 2010) (internal quotation

marks and citation omitted). Because the hypothetical did not account for Boettcher’s

asserted needs to lie down and to take frequent breaks, the vocational expert’s

response cannot constitute substantial evidence. See Guilliams v. Barnhart, 393 F.3d

798, 804 (8th Cir. 2005) (“Hypothetical questions that assume a claimant is capable

of performing a category of work are problematic because they often result in a failure

to create a record showing that the vocational expert considered the particular

individual disabilities of the claimant in evaluating his ability to perform alternative

employment.”) (internal quotation marks and citation omitted); Snead v. Barnhart, 360

F.3d 834, 837 (8th Cir. 2004) (stating the ALJ failed to fully and fairly develop the

record because “[e]ven though [the claimant’s] evidence showing his incurable

cardiomyopathy went uncontradicted, the ALJ did not incorporate evidence of [the

claimant’s] heart condition in the hypothetical posed to the VE.”). Indeed, in response

to questions posed by Boettcher’s counsel, the vocational expert testified an individual

who required frequent breaks as Boettcher did, as well as an individual who required

the ability to frequently lie down, would not be employable. See Holmstrom, 270

F.3d at 722 (concluding the claimant established he was disabled because “[i]n answer

to a hypothetical posed by [the claimant’s] counsel, the vocational expert testified that
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there would be no jobs in the national economy for [the claimant] if he needed to lie

down at times each day.”).

For the foregoing reasons, I would conclude substantial evidence on the record

as a whole does not support the ALJ’s decision. I therefore respectfully dissent from

the majority’s decision to reverse the district court.

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