United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-2533

___________ Luebertha Ingram, * * Plaintiff-Appellant, * * v. * Appeal from the United States * District Court for the Eastern Shirley S. Chater, Commissioner * District of Arkansas. of the Social Security * Administration, * * Defendant-Appellee. *

___________ Submitted: December 9, 1996 Filed: February 25, 1997

___________ Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges.

___________ BRIGHT, Circuit Judge.

Luebertha Ingram appeals from the district court's orde r af firming the denial of disability insurance benefits an d
su pplemental security income by the Commissioner of the Socia l Security Administration (Commissioner). The district court found substantial evidence to support the determination that Ingram was
no t disabled and granted the Commissioner's motion for summar y judgment. We affirm in part, reverse in part, and remand fo r further proceedings.

FACTUAL BACKGROUND-2-

Luebertha Ingram filed an application for disability insuran ce benefits and supplemental security income on March 9, 1993. Sh e asserted an inability to work since 1990 due to back and leg pain and migr aine headaches. Ingram, who is in her late forties, wa s previously employed as a factory worker and, until the onset of her health problems, had a consistent work record.

Three doctors examined Ingram. Dr. D. J. Brewer, a chiro

practor, examined Ingram prior to her claim for benefits. At the request of the Commissioner, Ingram saw Dr. Richard L. Hester o n April 13, 1993. Ingram also s aw Dr. Ramon Lopez on July 27, 1993. Finally, Dr. Hester treated Ingram on at least a dozen occasion s after April 13, 1994.
The Commissioner denied Ingram's initial claim for benefits,
as well as her claim on reconsideration. Ingram then received a hearin g before an administrative law judge (ALJ) and the AL J affirmedthe denial of Ingram's claim. The Appeals Counci l de clinedto review the ALJ's determination, thereby making th e ALJ's decision the final rulin g of the Commissioner. The district court then affirmed the ALJ and Ingram brought this appeal.

DISCUSSION

"Our review of the denial of benefits is limited t o det ermining whether the decision is supported by substantia l evidence on the record as a wh ole." Groeper v. Sullivan , 932 F.2d 1234, 1237 (8th Cir. 1991). S ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion. Smith v. Shalala , 987 F.2d 1371, 1374 (8th Cir
. 1993). "In assessing the substantiality of the evidence, we must consid er evidence that detracts from the Secretary's decision a s well as evidence that supports it." Id. We may also reverse the Secret ary's findings if the Secretary applies an erroneous lega l standard. Nettles v. Schweiker , 714 F.2d 833, 835-36 (8th Cir
. 1983). Finally, the ALJ "must minimally articulate his reas ons for-3-

credit ing or rejecting evidence of disability." Scivally v
. Sullivan , 966 F.2d 1070, 1076 (7th Cir. 1992).

To receive disability benefits, Ingram must establish a physic al impairment lasting at least one year that prevents he r from engaging in any substantial gainful activity. Smith , 9 87 F.2d at 1373. Ingram bears the bur den of proof on this issue. Id. In det ermining whether a claimant is disabled, the Commissione r utilizes a five-step sequential evaluation:
First, the Secretary determines whether the claimant is presentlyengaged in a `substantial gainful activity. ' Second, the Secretary analyzes whether the claimant has a severe impairment--one that significantly limits th e cl aimant's physical or mental ability to perform basi c workactivities. Third, the Secretary determines whethe r the claimant has an impairment that meets or equals a n impairment listed in the regulations; if so, th e Secr etaryfinds that the claimant is disabled withou t considering the claimant's age, education, and wor k experience. Fourth, the Secretary considers th e claimant's residual functional capacity and the physical and mental demands of the claimant's past work t o dete rmine whether the claimant can still perform tha t wor k. If the claimant has the residual capacity t o perform that work, the Secreta ry finds that the claimant is not disabled. Finally, if the Secretary determine s that the claimant cannot perform the past work, th e Secretarydetermines whether any substantial gainfu l activ ityexists in the national economy which th e claimant can perform.

Id. (citations omitted).
There is no dispute that Ingram meets the first two prongs of the test, so only the third and fourth steps are at issue here
. Spe cifically, the ALJ determined that Ingram did not meet th e criteria of a listed impairment for purposes of step three. Add. at 19. Under step four, the ALJ concluded that Ingram "has th e residual functional capacity to perform work-related activitie s except for work involving lift ing and carrying more than 20 pounds . . . . [and her] impairments do not prevent [her] from performingIn 1990, Dr. Brewer found Ingram was 5'0" and weighed 24 1

pounds. From April 1993 through November 1994, Dr. Hester foun d Ingram as 5'3" and weighed between 253 and 267 pounds. In July -4- her past relevant work." Id. Ingram contests both findings, a s well as the ALJ's credibility determinations.

I.
Ingram first argues that she is entitled to benefits because she is disabled due to obesity. A woman is presumed to be d isabled due to obesity when she establ ishes the following medical listing:

9.09 Obesity : Weight equal to or greater than the values specified in Table . . . II for females (10 0 percent above desired level), and . . .: A. History of pain and limita tion of motion in any weight-bearing joint or the lumbosacral spine (o n physical examination) associated with findings o n medically acceptable imaging techniques of arthritis in the affected joint or lumbosacral spine . . . .

20 C.F.R. pt . 404, subpt. P, app. 1 § 9.09. We first conside r whethe r Ingram meets the Table II requirements of obesity, the n determine whether she meets the criteria outlined under § 9.09A.

A.
During the ALJ hearing, Ingram testified that she weighed 240 pounds and that her height was 5'5". These measurements ar e insufficient for purposes of establishing obesity under Table II, and the ALJ found that "there is no evidence that the claimant has met the height and weight requirements . . . for more than twelve consecutive months . . . ." Add. at 11. It is undisputed , howe ver, that every examining doctor placed Ingram's height an d weight in the obesity category under Table II and that thes e reports extend over a twelve-month period. In addition, no medical evi dence suggests Ingram ever failed to meet the requirements o f Table II. Indeed, the district court observed:

11993, Dr. Lopez found Ingram was 5'4" and weighed 258 pounds. -5- Defe ndant relies on the fact that plaintiff testifie d that she was 5'5" and weighed 240 pounds. However, the medical evidence always shows that she was shorter and, usually, heavier. The Step 3 determination is based on medical evidence. Clearly, the ALJ would have bee n entitled to discount her testi mony if she testified that she was shorter than medical r ecords indicated; it would be unf air to hold plaintiff to the height that sh e testified to when medical records clearly show that her testimony was incorrect.

Add. at 28 n.2 (citations omitted). We agree with the distric t court and conclude that there is no substantial evidence in th e record to support the ALJ's determination on this issue
. Accordingly, we hold that Ingram meets the requirements of T able II and is obese for purposes of § 9.09.

B.
Ingrammust also satisfy the criteria of § 9.09A whic h requires a "history of pain and limitation of motion in any weightbearin g joint or the lumbosacral spine (on physical examination ) associated with findings on medically acceptable imaging tec hniques of arthritis in the affected joint or lumbosacral spine." 2 0 C.F. R. pt. 404, subpt. P, app. 1 § 9.09A. The ALJ rejected thi s portionof Ingram's claim in rather conclusory fashion. The AL J stated only that Ingram failed to demonstrate "the other required
sec ondarybody system effects for the requisite time period wit h the required clinical and labo ratory findings specified for such a body system by the listed impa irment found in Section 9.09. . . ." Add. at 11. The district court affirmed, holding that Ingram did not me et any of the criteria under § 9.09A because she failed t o produce x-ray evidence of arthritis and did not establish a historyThe district court made the following comments regardin g

Ingram's claim under § 9.09A:

There is no plain X ray, computerized axia l tomo graphic X ray or magnetic resonance imaging whic h show s arthritis in knees, ankles, hips or lumbosacra l spine. Plaintiff points to Dr. Ramon E. Lopez's X rays of the lumbar spine showing degenerative lumbar disc diseas e at L5-S1. Degenerative disc disease is not arthritis, o f course. Plaintiff also points to an April, 1994, examinatio n byDr. Richard L. Hester. . . . Dr. Hester's note s indicate, "She has some slight pain to palpation of the left knee. There is some slight pain with range o f motion. It's not particularly swollen or warm to touch, either."
He also recorded laboratory findings: "X-rays of th e kn ee and arms are relatively unremarkable. There i s possibly some slight loss of cartilage in the knee."
It should also be noted that when plaintif f presented to Dr. Hester in April, 1994, with complaints of pain in both knees and hand s, she indicated that this had st arted bothering her just within the last severa l weeks. While Dr. Lopez recorded a red uced ranged of motion in the hips and spine, Dr. Hes ter had examined her three months before and found no limitation of motion.
Add. at 28-29 (citations omitted). -6- of pai n or limitation of motion. Ingram challenges thes e conclusions. 2
As an initial matter, we must first determine the proper leg al standardconcerning the amount of pain or limitation of motio n necessary under § 9.09A becaus e the ALJ and district court did not do so. Se ction 9.09A, by its plain language, requires only a history of pain and limitation of motion, but does not state that
a particular level of pain or limitation must be demonstrated
. Pitzer v. Sullivan , 908 F.2d 502, 505 (9th Cir. 1990) (requirin g claimant to demonstrate "disabling" pain is an "additional-7-

requirement" that "flies in the face of the plain language" o f § 9.09A); Carnes v. Sullivan , 936 F.2d 1215, 1219 (11th Cir. 1991). At least three circuit court of appeals agree that, for purp oses of § 9.09A, a claimant need only demonstrate a minimal amount of pain and limitation of motion. See Hughes v. Shalala , 23 F.3d 957, 959 (5th Cir. 1994) ("There is no requirement that the pain be s everely limiting [or] that the limitat ion of motion be marked . . . . The listing requires only limitation of motion . . . ."); Carnes , 936 F.2d at 1219 ("The ALJ . . . imposed unjustifiable new requi rements to Listing [9.09A] by requiring Carnes to show that her arthritis is more than minimal, and that her limitation of motion i s `s ignificant.'"); Pitzer , 908 F.2d at 505. "Moreover, th e regulation also says that long-term obesity is usually associated withother disorders, and it is `the advent of such disorder s [that] is the major cause of impairment.'" Pitzer , 908 F.2dat 505 (quoting 20 C.F.R. pt. 404, subpt. P, app. 1); see also Carn es , 936 F.2d at 1215.

Indeed , the amount of x-ray evidence of arthritis necessar y for purp oses of § 9.09A is identical to that necessary to demon

strate a history of pain and limitation of motion. For example , the Eleventh Circuit holds tha t "an obese claimant need present no
mor e than evidence of minimal degenerative joint changes to mee t th e required showing of `X-ray evidence of arthritis . . . .' " Carnes , 936 F.2d at 1219; see also Hughes , 23 F.3d at 959 ("Th e listing [o nly] requires . . . any amount of x-ray evidence o f art hritis."); Holden v. Shalala , 846 F. Supp. 662, 667-668 (N.D
. Ill
. 1994) ("minimal" evidence of arthritis in knees of obes e claima nt sufficient); Johnson v. Bowen , 687 F. Supp. 1284, 130 7 (W.D. Wis. 1988) ("[T]he degree of severity of the arthriti s necessaryto satisfy this section is very low."). "To requir e [In gram] to produce X-ray evidence of more advanced arthritis i s

. . . to ignore the `profound effect of excessive weight on a weight-bearing joint' which justifies the `relatively modes t pathological threshold' imposed . . . ." by § 9.09A. Carnes , 936 F.2d at 1219 (quoting Johnson , 687 F. Supp. at 1307).Medical evidence from Dr. Hester dated July 26, 1994 through

January 3, 1995 was not submit ted to the ALJ, but was made part of the record on appeal to the Appeals Council. Admin. Tr. at 6. -8- We adopt the standard articulated by these courts that a claimant must demonstrate only a minimal amount of pain, lim itation of motion and x-ray evidence o f arthritis for purposes of § 9.09A. Fi nally, we note that Ingram is not "required to show that he r symptoms of pain and limitatio n of motion were caused by arthritis and not just by her obesity." Carnes , 936 F.2d at 1219; see also Pitzer , 908 F.2d at 505.

With the appropriate legal standards now before us, w e con sider Ingram's claims in turn. We first determine whethe r Ingr amadequately demonstrates a history of pain, limitation o f motio n, and x-ray evidence of arthritis in her knees. Next, w e consid er whether Ingram demonstrates such evidence in her spine
. Ingram is entitled to benefits if she makes this showing foreither her knees or her spine.

i.

Dr. Hester's initial examinati on in 1993, without the benefit of an x-ray, resulted in a diagnosis of obesity and probable lumbar
mus cular strain but detected no limitation of motion in Ingram' s knees. Admin. Tr. at 153. Dr . Hester's next physical examination on April 13, 1994, however, included an x-ray of Ingram's kn ees and Dr. Hester observed that Ingram suffered from "slight pain t o palpa tionto the left knee" and "some slight pain with range o f motion." Admin. Tr. at 164. More significantly, Dr. Hester' s assessment changed once again when he saw Ingram on July 26, 1994, and determined that Ingram had "mild to moderate pain with r ange of motion of either k nee." Id. at 169. Likewise, on July 23, 1993, 3 Dr. Lopez detailed some restricted motion in Ingram's left knee
. Id. at 157.Ing ram also argues that the x-ray evidence of Dr. Brewe r

shoul dbe considered. Dr. Brewer is a chiropractor. Under th e regulations, chiropractors are not considered "acceptable medical sources." 20 C.F.R. § 404.1513(a)(1995). Therefore, we dec line to rely on Dr. Brewer's conclusions.

-9- The Commissioner accurately summarized that Dr. Heste r "consistently described [Ingram's history of pain and limita tion of motion] as only slight, mild or minimal . . . ." Appellee's Br. at 10
. This statement, in light of the standard set forth above , concedes that Ingram demonstra tes a sufficient showing of pain and limitationof motion for purposes of § 9.09A. Accordingly, w e det ermine that Ingram meets the pain and limitation of motio n requirement of § 9.09A for her knees.
Ingram next argues that x-ray evidence demonstrates som e arthritis in her knees. Dr. Lopez took x-rays of Ingram's knee s 4 but made no observations regarding arthritis. Dr. Hester, on the other hand, noted there was "possibly some slight loss of ca rtilage in the knee" and diagnosed Ingram as having "[p]robable earl y osteoarthritis of both hands and knees." Admin. Tr. at 164
. Indeed, within two days Dr. Hester diagnosed osteoarthritis, id. at 163, and ten days later he not ed "exacerbat[ed] . . . osteoarthritis." Admin. Tr. at 162. Dr. Hester's diagnosis of osteoar thritis remained essentially unchanged through Ingram's last visit w ith Dr. Hester on January 3, 1995. Admin. Tr. at 172.
Even though the Commissioner did not challenge this contenti on in eithe r her brief or during oral argument, we are reluctant t o interpret these statements as clearly articulating x-ray evidence of some arthritis in Ingram's knees. In particular, Dr. Hester's qua lificationthat such arthritis is "probable," despite hi s sub sequent diagnosis, gives us pause. Accordingly, we remand t o the ALJ for the limited purpose of determining whether Ingra m demonstrates some x-ray evidence of arthritis in her knees. If so, she is entitled to benefits.See, e.g. , McGraw-Hill Concise Encyclopedia of Science an d

Technology 152 (2d ed. 1989) ( dividing arthritis into four groups, including "degenerative joint disease"). -10- ii.
The record regarding limitation of motion in Ingram's spine is unclear. Indeed, the district court noted a disagreement between Dr. Hester and Dr. Lopez on this point. Add. at 29. The ALJ did not, however, articulate specific findings concerning thi s evidence. Accordingly, we remand to the ALJ to determine whether Ingram demonstrates a history of pain and limitation of motion in her spine.
Dr. Lopez observed that "X-rays of the lumbar spine revealed
a firs t degree spondylolisthesis at L5-S1 with narrowing of th e interspace. There were also d egenerative changes and sclerosis of the facet joints at the same level." Admin. Tr. at 156. Because
no other doctor x-rayed Ingram's spine, these conclusions of Dr
. Lopez remain undisputed. Although the ALJ did not make any sp ecific determinations regarding this x-ray, the district cour t di scountedit because "[d]egenerative disc disease is no t arthritis, of course." Add. at 28. Although it appears tha t deg enerative disc disease is, in fact, evidence of arthritis, w e 5 remand for the purpose of determining whether Dr. Lopez's x-ra y de monstrated"any amount of evidence of arthritis" in Ingram' s spine. Hughes , 23 F.3d at 959.

II.
Ingram makes an alternative argument that, even if she fails to me et the criteria of a listed impairment due to obesity, th e ALJ's conclusion that she can return to her past relevant work is not substantially supported by the evidence. Ingram has the burden of demonstrating that she is unable to perform her previous work.-11-

Dixo nv. Sullivan , 905 F.2d 237, 238 (8th Cir. 1990). Whe n evaluating whether a claimant can return to past work, the ALJ:
must specifically set forth the claimant's limitations, both physical and mental, and determine how thos e limitations affect the claimant's residual functiona l capacity. The ALJ must also make explicit finding s regarding the actual physical and mental demands of the claimant's past work. Then, the ALJ should compare the claimant's residual functional capacity with the actual dema nds of the past work to determine whether th e claimant is capable of perform ing the relevant tasks. A conclusory

determination that a claimant can perform pas t workwithout these findings, does not constitut e substantial evidence that the claimant is able to return to his past work.

Groe per , 932 F.2d at 1238-39 (citations omitted). Residua l functional capacity "is not the ability merely to lift weight s occasionally in a doctor's office; it is the ability to perf orm the requisite physical acts day in and day out, in the sometime s competitive and stressful conditions in which real people work in the real world." McCoy v. Schweiker , 683 F.2d 1138, 1147 (8 th Cir. 1982) (en banc).

The ALJ briefly discussed Ingram's past job duties: "[T]h e claimant retains a residual functional capacity to perform h er past relevant work experience as a machine operator as she described it andas such work is normally performed in the national economy. " Add. at 18. The ALJ relied on Ingram's description of this work as requiring standing and walking for twelve hours a day in addition to constant bending. Add. at 18.
Dr. Hester and Dr. Lopez discu ssed Ingram's capacity to work. Dr. Hester concluded after his first examination that Ingram could "perf ormall of the work-related tasks asked of her here in th e office . . . ." Admin. Tr. at 154. As noted earlier, howev er, Dr. Hester's assessment appeared to change after subsequen t examinations. Dr. Lopez concluded that Ingram "would not be able to do work activities which require any sitting, standing, b ending,-12-

. . . climbing, stooping, or squatting. She would be also b e una ble to do any repetitive reaching or handling of objects. " Admin. Tr. at 156.
The ALJ apparently favored Dr. Hester's report and, although it is within the ALJ's authority to resolve conflicting opinions, Cabrnoch v. Bowen , 881 F.2d 561, 564 (8th Cir. 1989), we are unable to det ermine whether the ALJ considered these reports under th e correct legal standard. See McCoy , 683 F.2d at 1147. Indeed, in light of Dr. Hester's later reports detailing Ingram's increasing pain a nd limitation of motion, there is little medical evidenc e contradicting Dr. Lopez's conclusions that Ingram cannot tolerate prolonged work. Accordingly, we remand this issue to the ALJ for reconsideration in light of the legal standard set forth above.

III.

The ALJ made credibility assessments regarding Ingram' s allegedinability to work. An ALJ is permitted to disbeliev e subjective complaints if there are inconsistencies in the record. Isom v. Schweiker , 711 F.2d 88, 90 (8th Cir. 1983). Thes e credibility assessments have support in the record.

CONCLUSION

"T he decision whether to remand a case for additiona l evidence, or simply to award benefits is within the discretion of the court." Sprague v. Bowen , 812 F.2d 1226, 1232 (9th Cir. 1987). In light of our discussion, we affirm in part, reverse in pa rt, and
rem andfor further proceedings consistent with this opinion
.-13-

A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.