United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-2971

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James Juszczyk, *

*

Plaintiff–Appellant, *

* Appeal from the United States

v. * District Court for the 

* Western District of Missouri.

Michael J. Astrue, Commissioner *

of Social Security, *

*

Defendant–Appellee. *

 __________

Submitted: April 18, 2008

Filed: September 15, 2008

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Before LOKEN, Chief Judge, JOHN R. GIBSON and MELLOY, Circuit Judges.

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MELLOY, Circuit Judge.

James Juszczyk applied for disability insurance benefits under Title II of the

Social Security Act, 42 U.S.C. § 401 et seq. His application was denied, and a timely

request for hearing was filed. After a hearing, an administrative law judge of the

Social Security Administration again denied Juszczyk’s application, finding he was

not under a “disability” as defined in the Act. The Appeals Council denied Juszczyk’s
1

The Honorable Gary A. Fenner, United States District Judge for the Western District

of Missouri.

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request for review, and the district court1

 affirmed. Juszczyk appeals, and we affirm

the decision of the district court.

I.

In October 2000, Juszczyk was seriously injured in an auto accident that also

injured his wife and resulted in his son’s death. This accident caused Juszczyk to

suffer crushed bones, multiple fractures, and trauma, and left him with residual pain,

limitation on motion, and a left shoulder disorder. Juszczyk also suffers from

depression and anxiety. 

The administrative record included hearing testimony from Juszczyk;

Juszczyk’s wife; a vocational expert; and a medical expert, Dr. Seymour Liberman.

Dr. Liberman testified from the medical records created by Juszczyk’s treating

psychologist, Dr. John H. Stanley, and another psychologist, Dr. Robert Pulcher. The

record also included reports completed by Dr. Stanley and Dr. Pulcher, as well as

reports from Dr. Heather Flageman and Dr. Kathleen King. The record also contains

Juszczyk’s employment records and questionnaires he filled out assessing his own

mental limitations. 

At the administrative hearing, Juszczyk testified extensively and detailed

several physical and mental complications, which, if accepted as credible, would

likely entitle him to disability benefits. Juszczyk’s wife testified that Juszczyk

suffered depression. She said some days he cannot leave the apartment because

“[t]hings get to him, like Father’s Day or anniversaries of accidents.” She testified

that he had had a very close relationship with their son who died in the accident. 
2

“[T]he Global Assessment of Functioning Scale is used to report ‘the clinician’s

judgment of the individual’s overall level of functioning.’” Hudson ex rel. Jones v.

Barnhart, 345 F.3d 661, 662 n.2 (8th Cir. 2003) (quoting Diagnostic and Statistical

Manual of Mental Disorders 32 (4th ed. Text Revision 2000)). 

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In January 2005, Dr. Stanley, Juszczyk’s treating psychologist before and after

the October 2000 accident, determined Juszczyk had severe mental limitations—other

treatment providers did not assess Juszczyk’s mental limitations as severely. Dr.

Stanley assessed Juszczyk’s Global Assessment of Functioning (GAF) score at 35 to

40.2

 Dr. Stanley’s report identified Juszczyk as having, inter alia, “very low

frustration tolerance,” poor memory, recurrent panic attacks, paranoia, anxiety,

hostility and irritability, problems with mood and personality, and suicidal ideation.

Dr. Stanley determined that Juszczyk could be expected to be absent from work more

than three times a month and that he had poor or no ability to maintain regular

attendance, to be on time, to work in proximity with others without being unduly

distracted, or to perform at a constant pace. Dr. Stanley reported that Juszczyk had

moderate limitations on his daily living activities, marked difficulties maintaining

social functioning, and constant deficiencies of concentration, persistence, or pace

resulting in failure to complete tasks in a timely manner.

In addition to the January 2005 report, the record also included additional

reports from Dr. Stanley. In January 1998, more than two years before the accident,

Dr. Stanley reported Juszczyk had thoughts of suicide, anxiety, mood swings,

irritability, and difficulty concentrating. Juszczyk was easily distracted, he forgot

where he put things, he would dwell and obsess over problems, and he found it hard

to tolerate interruption. Dr. Stanley diagnosed Juszczyk with adult attention deficit

disorder and obsessive compulsive traits. In August 2001, almost a year after the

accident, Dr. Stanley again assessed Juszczyk’s mental impairments. In a space on

a reporting form where Stanley was asked to “[d]escribe any evidence of a mental

problem which impacts the patient’s ability to perform basic tasks and make decisions

required for daily living,” he responded that Juszczyk was “[c]ompetitive” and “hard
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working,” yet also “impulsive,” and had difficulties in sustaining concentration and

maintaining focus. In April 2004, Dr. Stanley noted his primary diagnosis for

Juszczyk was post traumatic stress disorder, adult attention deficit disorder, and

obsessive compulsive disorder with panic attacks. Dr. Stanley determined Juszczyk

was permanently incapacitated and would be unable to engage in full-time

employment on a regular basis at a normal wage rate that would fit his age, training,

and experience. 

In November 2000, Dr. Flageman, one of the reviewing physicians, reported

that Juszczyk was “very frustrated” because he did not remember the details of his

accident and that he heard a “mechanical, grating” sound when he tried to sleep. She

noted he suffered from grief and acute post traumatic stress disorder, and her

recommendation was to continue with normal grief evaluation and to begin

counseling. 

The record also contained numerous questionnaires in which Juszczyk assessed

his mental impairments over the course of many years. He repeatedly noted he had

moderate problems with depression, mood swings, anger outbursts, and anxiety and

panic. On occasion, he identified these problems as serious. He also indicated

moderate problems with crying episodes and thoughts of self-harm. Also included in

the record were Juszczyk’s earnings records from 1977 until 2000, which indicated

Juszczyk’s annual earnings varied widely. During this period, Juszczyk’s regular

earnings exceeded $8,000 in only seven of the twenty-four years.

Dr. Seymour Liberman, a medical expert who reviewed Juszczyk’s medical

records, testified as to Juszczyk’s physical and mental impairments. A few months

after the accident, Juszczyk had difficulties with his shoulders and elbows. He was

able to put on a pullover shirt, comb and brush his hair, turn a doorknob and pull up

his trousers, although he was unable to bring food to his mouth with his right hand and

had difficulty opening jars. Medical records indicate that Juszczyk could occasionally
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lift twenty pounds, and frequently ten pounds. He could stand, walk, and sit six out

of eight hours. Additionally, Dr. Liberman testified that based on these records, a few

months after the accident, Juszczyk could only occasionally climb stairs, balance,

kneel, crouch, or crawl. Dr. Liberman testified he did not have any recent information

on Juszczyk’s physical capabilities, and that more recent problems with his right

shoulder may have resulted in these problems increasing. 

Regarding Juszczyk’s mental impairments, Dr. Liberman testified that Juszczyk

suffers from multiple psychological problems—including attention deficit disorder,

post traumatic stress disorder, and severe obsessive compulsive traits—and that he

possibly suffers from bipolar disorder. Dr. Liberman also testified that the record

includes conflicting evidence as to the severity of Juszczyk’s mental impairments. 

Around the same time Dr. Stanley issued his report assessing Juszczyk’s GAF

at 35 to 40, another psychologist, Dr. Pulcher, assessed Juszczyk’s GAF at 50. Dr.

Pulcher’s report concluded that although Juszczyk needed therapy and possibly

medication, “[t]here [were] no indications of any mental impairments that would keep

[him] from working.” Dr. Pulcher rated Juszczyk’s abilities highly, reporting he had

a “more than satisfactory” ability to follow work rules, deal with the public, interact

with supervisors, handle work stress, and maintain attention and concentration, and

a “limited but satisfactory” ability to relate to his co-workers, use judgment, and

function independently. In all other areas, Dr. Pulcher found Juszczyk’s abilities were

either “more than satisfactory” or “not limited by a mental impairment.” Dr. Pulcher

administered multiple psychological tests, and most of the test results indicated

Juszczyk’s mental abilities were average to mildly impaired. While Juszczyk’s results

on one of the tests indicated more severe problems, Dr. Pulcher concluded that these

results “must be interpreted with caution,” as the scores were “extremely high,”

suggesting exaggeration and malingering. Dr. Pulcher doubted the validity of the test,

and stated “this test was exaggerated to make [Juszczyk] look worse than is really the

case.” Dr. Pulcher reported that if Juszczyk’s statements as to the severity of his
3

These caveats include no heavy overhead lifting or stooping and only occasional stair

climbing, balancing, kneeling, crouching, or crawling. 

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mental impairments were true, he would need psychiatric hospitalization or at least

ongoing psychological therapy. 

At the hearing, Dr. Liberman testified that, based on Juszczyk’s testimony,

Jusczcyk “might be capable of sedentary work,” but not of light work. Dr. Liberman

clarified, however, that based on all the evidence, Juszczyk would be capable of

sedentary work. When Dr. Liberman discounted Juszczyk’s testimony, he concluded

that Juszczyk would be capable of more: “light work with many caveats.”3

The record also contained reports from other medical professionals. In October

2000, a consultant at Truman Medical Center noted that Juszczyk was “demoralized”

from his accident and that this was “a normal reaction.” At the time, the consultant

determined Juszczyk did not show any sign of needing antidepressant medications.

A discharge report states that Juszczyk had been a possible suicide risk, but that the

hospital personnel determined he was no longer at risk. 

In August 2001, Dr. King reported that Juszczyk had mild limitations in his

daily living and social functioning activities and moderate difficulties in maintaining

concentration, persistence, the ability to understand, remember, and carry out detailed

instructions. He was not “markedly limited” in any of the abilities assessed, and he

was not significantly limited in most of the abilities assessed, including his ability to

remember locations and work-like procedures, to maintain attention and concentration

for extended periods, to maintain regular attendance, to be punctual within customary

tolerances, to sustain an ordinary routine without special supervision, to work in

coordination with or proximity to others without being distracted by them, to complete

a normal workday and workweek without interruptions from psychologically based

symptoms, and to perform at a consistent pace without an unreasonable number and
4

Specifically, this first hypothetical question posed whether jobs could be performed

by someone who could lift and carry twenty pounds on an occasional basis and ten

pounds frequently, who could stand and walk for at least thirty minutes at a time for

a total of four hours in an eight hour day, who could sit with normal breaks and rest

periods for six hours in an eight hour day, who would be unable to perform work

involving overhead work, repetitive reaching, ladders, scaffolds, or high unprotected

work areas, who would be unable to drive, who could only occasionally stoop, kneel,

crouch, crawl, or use stairs, and who would have a “limited but satisfactory” ability

to relate to co-workers, use judgment, and function independently. 

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length of rest periods. Dr. King noted that Juszczyk lives with his wife, helps to raise

a child, and can manage money. She noted that Juszczyk’s treating physician had not

prescribed medication for bipolar disorder, and reported that his “[psychological]

problems alone do not appear severe enough to prevent [him] from performing at least

less demanding tasks.”

A vocational expert testified in response to two hypothetical questions the ALJ

posed. The first question included physical limitations of a nature and extent

expressed by Dr. Liberman and not as severe as Juszczyk’s testimony indicated. This

question also included mental limitations of the same nature and extent as those Dr.

Pulcher reported, which were less severe than Dr. Stanley and Juszczyk indicated.4

In response to this, the vocational expert testified there are numerous jobs in the state

and national economies Juszczyk could perform. The second hypothetical question

included more serious physical and mental limitations, based on Juszczyk’s testimony
5

The second hypothetical question posed whether there are jobs in the national

economy that could be performed by someone with the same non-exertional

limitations as were included in the first question, but who could lift and carry only ten

pounds on an occasional basis and negligible weights frequently, who could stand and

walk for only fifteen minutes at a time for a total of two hours in an eight hour day,

who could sit with normal breaks and rest periods for six hours in an eight hour day,

and who would have mental limitations as Dr. Stanley identified in his assessment. 

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and Dr. Stanley’s assessment.5

 In response to this question, the vocational expert

testified there would not be any jobs in the national economy Juszczyk could perform.

Based on the record and testimony presented at the administrative hearing, the

ALJ determined Juszczyk was not disabled and that he was not precluded from

working in jobs that existed in significant numbers. The ALJ determined whether

Juszczyk was disabled using the regulatory five-step evaluation process. See 20

C.F.R. § 416.920(a)(4); Davidson v. Astrue, 501 F.3d 987, 988 (8th Cir. 2007). 

In reaching this determination, the ALJ considered the evidence described

above. The ALJ found Juszczyk to be only partially credible, based on evidence that

he had been in and out of the work force and had earnings below a level of substantial

gainful activity for many years, even in the absence of an alleged disability.

Additionally, the ALJ noted that the objective medical evidence did not support

Juszczyk’s allegations as to the depth and severity of his physical impairments. The

ALJ also found Dr. Stanley’s GAF assessment to be incredible, noting that if the

assessment were true, Juszczyk would require hospitalization, and noting it was

inconsistent with 90% of Dr. Stanley’s records, which the ALJ found classified

Juszczyk’s symptoms as mild to moderate. 

Based on the evidence, the ALJ determined Juszczyk’s residual functional

capacity. A residual functional capacity assessment determines what claimants would

be capable of doing despite their physical and mental limitations. 20 C.F.R. §
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404.1545(a); McGeorge v. Barnhart, 321 F.3d 766, 768 (8th Cir. 2003). The ALJ

concluded that at all times Juszczyk retained a residual functional capacity to lift and

carry twenty pounds occasionally and ten pounds frequently, to stand or walk thirty

minutes at a time for a total of four hours in an eight hour day, and to sit for six hours

in an eight hour day. He could only occasionally stoop, kneel, crouch, crawl, or

climb stairs. The ALJ concluded Juszczyk could not work on ladders, scaffolding at

heights, or in unprotected work areas. He could not drive commercially or engage in

overhead work or repetitive reaching. Based on this and the first hypothetical

question posed to the vocational expert, the ALJ determined that at all relevant times,

Juszczyk was capable of performing jobs that exist in significant numbers in the

national economy and that he was not disabled within the meaning of the Social

Security Act. The district court affirmed this decision.

II.

“We review the district court’s decision de novo,” and “uphold the . . . denial

of benefits . . . if the ALJ’s decision is supported by substantial evidence in the record

as a whole.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). “Substantial

evidence is less than a preponderance, but enough that a reasonable mind might

accept it as adequate to support a decision.” Id. 

On appeal, Juszczyk asserts the denial of his claim for disability insurance

benefits was not supported by substantial evidence on the record as a whole.

Specifically, Juszczyk makes four arguments. He argues that the ALJ applied the

incorrect legal standard for determining residual functional capacity, that the ALJ

failed to consider his mental impairments in determining his residual functional

capacity, that the ALJ applied the incorrect legal standard in evaluating the testimony

of Dr. Stanley, as the treating physician, and that the ALJ improperly relied on the

testimony of the vocational expert who testified based on a hypothetical question that

did not include Juszczyk’s non-exertional impairments. Many of these arguments are
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based on a challenge to the ALJ’s decision to discount Juszczyk’s testimony and Dr.

Stanley’s GAF assessment. Therefore, we will address these two points before

addressing specifically the four arguments Juszczyk raises on appeal.

A.

The ALJ found Juszczyk’s testimony to be not wholly credible. The ALJ

explained this determination was supported by evidence of Juszczyk’s work history.

He was in and out of work for many years and also did not report earnings at a level

indicating substantial gainful activity, even in the absence of an alleged disability.

The ALJ also explained that the objective medical evidence, including clinical

findings, did not support Juszczyk’s testimony as to the depth and severity of his

physical impairments. We defer to the ALJ’s well-supported determination that

Juszczyk’s testimony was not wholly credible. Gregg v. Barnhart, 354 F.3d 710, 714

(8th Cir. 2003); see also Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007) (deferring

to the ALJ’s credibility finding because the ALJ pointed to substantial evidence in the

record supporting her decision to discount the claimant’s subjective allegations).

Additionally, we note that Dr. Pulcher also doubted Juszczyk’s credibility and that Dr.

King determined Juszczyk was not more than mildly limited. “If an ALJ explicitly

discredits the claimant’s testimony and gives good reason for doing so, we will

normally defer to the ALJ’s credibility determination.” Gregg, 354 F.3d at 714. 

B.

The ALJ did not rely on Dr. Stanley’s assessment of Juszczyk’s mental

limitations. ALJs are not obliged to defer to treating physician’s medical opinions

unless they are “well-supported by medically acceptable clinical and laboratory

diagnostic techniques and [are] not inconsistent with the other substantial evidence in

the record.” Ellis v. Barnhart, 392 F.3d 988, 995 (8th Cir. 2005) (quotations omitted).

The ALJ rejected Dr. Stanley’s assessment because it was inconsistent with Dr.
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Stanley’s own treatment notes, with objective testing, and with other medical evidence

in the record. Our review of the record, including reports from Dr. Pulcher, Dr. King,

Dr. Flageman, and the Truman Medical Center confirms the ALJ’s conclusion. 

Juszczyk argues that the ALJ rejected Dr. Stanley’s assessment based on

credibility judgments, speculation, or lay opinion, in violation of a Third Circuit

decision, Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). However, we find that

the ALJ rejected Dr. Stanley’s assessment based on contradicting medical evidence,

not on the ALJ’s own judgments or opinions. See id. (noting an ALJ may reject a

treating physician’s assessment on “contradictory medical evidence”). 

Juszczyk argues that the ALJ rejected Dr. Stanley’s opinion based on the ALJ’s

own unsubstantiated lay opinion by stating that if the information in Dr. Stanley’s

GAF assessment were true, Juszczyk would require hospitalization. We note that it

was Dr. Pulcher’s medical opinion that Juszczyk would need psychiatric

hospitalization or at least ongoing psychological therapy if Juszczyk’s assessments of

his own impairments were true. In the context of the ALJ’s decision, the ALJ was not

expressing a medical opinion. Instead, the statement indicated the ALJ considered Dr.

Stanley’s GAF assessment to be so extreme—in light of contradictory medical

evidence and the fact that no one recommended Juszczyk be hospitalized—that the

ALJ determined Dr. Stanley’s GAF assessment could not be relied on. We have held

that an “ALJ may discount or disregard [a treating physician’s] opinion if other

medical assessments are supported by superior medical evidence, or if the treating

physician has offered inconsistent opinions.” Hogan v. Apfel, 239 F.3d 958, 961 (8th

Cir. 2001). We find that the ALJ applied the correct legal standard in evaluating Dr.

Stanley’s testimony and that the ALJ’s decision not to rely on Dr. Stanley’s GAF

assessment was supported by substantial evidence. 
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III.

A.

Juszczyk’s first argument is that the ALJ applied the incorrect legal standard

for determining functional capacity. Whether the ALJ based his decision on a legal

error is a question we review de novo. Dewey v. Astrue, 509 F.3d 447, 449 (8th Cir.

2007). Although he is not specific in his argument, Juszczyk explains that functional

capacity should be determined by considering all the relevant evidence in the case

record, and that the assessment of his residual functional capacity must reflect the

most sustained work activity he can do for eight hours a day, five days a week. He

quotes this court’s opinion in McCoy v. Schweiker, 683 F.2d 1138 (8th Cir. 1982)

(abrogated on other grounds by Forney v. Apfel, 524 U.S. 266, 267 (1988)), and notes

that the functional-capacity evaluation must be a realistic evaluation of his abilities to

work “day in and day out . . . in the sometimes competitive and stressful conditions

in which real people work in the real world” and “not the ability merely to lift weights

occasionally in a doctor’s office.” Id. at 1147. 

Juszczyk neither identifies evidence the ALJ failed to consider nor specifies

how the ALJ’s assessment was unrealistic. We find that in determining Juszczyk’s

residual functional capacity, the ALJ engaged in a realistic assessment of Juszczyk’s

abilities. The ALJ considered the extent to which Juszczyk could perform on an

occasional and frequent basis, and the extent to which he could stand and sit over the

course of an eight hour day. 

While there is evidence in the record indicating Juszczyk would have

difficulties performing in stressful and competitive conditions, this evidence is in the

form of Juszczyk’s testimony, which the ALJ found to be not wholly credible, and Dr.

Stanley’s report, to which the ALJ did not give controlling weight. As explained
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above, substantial evidence supports the ALJ’s determinations. We find that the ALJ

applied the correct legal standard in assessing Juszczyk’s residual functional capacity.

B.

Juszczyk also argues that the ALJ failed to consider his mental impairments in

assessing his residual functional capacity. However, we find that the ALJ considered

the evidence as a whole and determined Juszczyk suffered mental impairments of a

nature and to an extent as indicated by Dr. Pulcher’s report. Juszczyk offered

evidence indicating more severe mental impairments. The ALJ, however, accorded

more weight to Dr. Pulcher’s report, and we find substantial evidence supports the

ALJ’s conclusion. 

C.

Juszczyk argues that the ALJ failed to apply the correct legal standard in

evaluating the opinion of Dr. Stanley, as the treating psychologist. As explained

above, the ALJ did not give controlling weight to Dr. Stanley’s opinion because Dr.

Stanley’s assessment of Juszczyk’s mental limitations contradicted substantial medical

evidence in the record, including objective clinical testing. We find substantial

evidence supports this determination. See Ellis, 392 F.3d at 995 (noting an ALJ need

not give a treating physician’s opinion conclusive weight if it is inconsistent with

other evidence in the record and if it is not well-supported by clinical tests). 
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D.

Finally, Juszczyk asserts that the hypothetical question posed to the vocational

expert “does not include the functional restrictions imposed by plaintiff’s non

exertional impairments which were affirmatively established by the evidence.” The

hypothetical question included some non-exertional impairments. The vocational

expert was to assume the individual was prohibited from performing any overhead

work or doing repetitive reaching, using ladders, scaffolds, working in high

unprotected work areas, or driving. The individual would also be able to stoop, kneel,

crouch, crawl, or use stairs only occasionally. 

Juszczyk neither elaborates on his argument nor specifies the non-exertional

impairments purportedly established by the evidence yet not included in the

hypothetical question. Our review of the record indicates that Juszczyk may be

referring to his own testimony as to his non-exertional impairments. However,

contrary to Juszczyk’s assertions, evidence of these non-exertional impairments was

not firmly established by the record, as the ALJ doubted Juszczyk’s credibility. Thus,

the ALJ’s decision to exclude them from the hypothetical question he relied on is

supported by substantial evidence. 

Our conclusion is not affected even if Juszczyk is not referring to the

hypothetical question’s exclusion of non-exertional impairments, but to more serious

mental impairments. As explained above, the ALJ’s decision to rely on a hypothetical

question including Dr. Pulcher’s assessment and excluding Dr. Stanley’s assessment

and Juszczyk’s testimony was supported by substantial evidence.

IV.

For the foregoing reasons, we affirm the judgment of the district court.

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