United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-1524

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Argie Alford Phillips, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Western

* District of Arkansas.

Michael J. Astrue, Commissioner *

Social Security Administration, * [UNPUBLISHED]

*

Appellee. *

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Submitted: August 25, 2011

Filed: September 26, 2011

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Before MELLOY, BOWMAN, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Argie Alford Phillips appeals the district court’s order affirming the denial of

disabilityinsurance benefits. Phillips alleged disability fromarthritis, diabetes,finger

numbness and tingling, and back problems. After a hearing, where Phillips was

counseled, an administrative law judge (ALJ) found that (1) Phillips’s date last

insured was December 31, 2010; (2) he had not engaged in substantial gainful activity

(SGA) since January 2004; (3) his well controlled diabetes was not a severe

impairment; (4) his severe impairments--carpal tunnel syndrome (CTS) and back

disorders--did not meet or equal a listing, alone or combined; (5) his subjective
complaints were not entirely credible; (6) the residual functional capacity (RFC)

opinion of his treating physician, Dr. Joel Cheong, was not entitled to significant

weight; and (7) and based on a vocational expert’s (VE’s) testimony, Phillips’s RFC

did not preclude performing his past relevant work (PRW). The Appeals Council

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denied review, and the district court affirmed. This court reviews de novo a district

court’s decision upholding the denial of benefits, affirming if the ALJ’s decision is

supported by substantial evidence on the record as a whole. See Teague v. Astrue,

638 F.3d 611, 614 (8th Cir. 2011). 

We conclude that the ALJ properly discounted Dr. Cheong’s opinion. The ALJ

cited 20 C.F.R. § 404.1527, stating he had considered the opinion evidence according

to regulatory requirements, and he thoroughly summarized the medical evidence and

Dr. Cheong’s opinion. Dr. Cheong examined Phillips only three times, and his

opinion is inconsistent with his examination findings; with the conservative treatment

prescribed for CTS, which test results showed was mild to moderate; with the lack of

testing or examination findings to confirm degenerative disc or joint disease or

arthritis; with a consulting physician’s mostly normal examination findings and

assessment of only a slight reduction in lumbar range of motion; and with Phillips’s

statements to his health care providers about the status of his health. See Martise v.

Astrue, 641 F.3d at 909, 926 (8th Cir. 2011) (treating physician’s opinion is properly

discounted when it is inconsistent with his treatment notes or with medical evidence

as whole); Teague, 638 F.3d at 615 (treating physician’s opinion should be well

supported by medically acceptable diagnostic techniques). Further, other than Dr.

Cheong’s opinion, we find nothing in the record supporting other limitations Phillips

contendsthe ALJ should have included in his RFC determination, which we conclude

issupported by substantial evidence. See Jones v. Astrue, 619 F.3d 963, 971 (8th Cir.

Phillips also alleged disability from hypertension and short-term memory

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problems, but on appeal he does not mention memory problems or challenge the

ALJ’s finding that his hypertension was not a severe impairment as it was controlled

by medication. 

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2010) (ALJ is responsible for determining RFC based on all relevant evidence

including medical records, observations of treating physicians and others, and

claimant’s description of his limitations; some medical evidence in record must

support ALJ’s RFC determination).

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We find merit, however, to Phillips’s challenges to theALJ’s findings on PRW. 

The ALJ found that Phillips’s RFC did not preclude performing his PRW as a forklift

operator, “taxi (limo)” driver, fire-truck driver, and school-bus driver; and that, as

noted, Phillips had not engaged in SGA since January 2004. The ALJ pointed to the

VE’s classification of these jobs as medium and semi-skilled, and the VE used the

Dictionary of Occupational Titles (DOT) listing for fork-lift operator to classify

Phillips’s past jobs as a router. The relevant records including a work-history report

that Phillips completed in May 2007 and his November 2008 hearing testimony. 

We agree with Phillipsthat, because the ALJ found he had not engaged in SGA

since January 2004, the ALJ erred by finding that a job driving a limousine in 2006

qualified as PRW. See Mueller v. Astrue, 561 F.3d 837, 841 (8th Cir. 2009) (PRW

is work that claimant performed within last fifteen years, that amounted to SGA, and

that lasted long enough for claimant to learn to do it). A job may qualify as SGA

even if it is part-time and profit is not realized, see 20 C.F.R. § 404.1572, but the

record does not support a finding that Phillips’s job as a volunteer fire-truck driver

qualified as SGA. Phillips testified that he had a helper and merely drove to the

scene--at times in a large pick-up truck, rather than a tanker truck--and he observed

at a distance for safety issues until he needed to return to the truck and sit. See 20

C.F.R. §§ 404.1572(a), 404.1573(c) (substantial work activity involves significant

physical or mental activities; if work is done under special conditions, it may not

An ALJ must first evaluate a claimant’s credibility before determining RFC, 2

see Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005), but on appeal Phillips does

not challenge the ALJ’s credibility determination, see Hacker v. Barnhart, 459 F.3d

934, 937 n.2 (8th Cir. 2006) (abandonment of issue on appeal).

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amount to SGA). Phillips also testified he had been a volunteer for the fire

department since 2001, but it is unclear how long he had been assigned a helper and

permitted to sit in the truck as needed. 

As to the two router jobs Phillips identified on the work-history form, his

testimony and written statements indicate that the lifting and carrying requirements

for medium work were exceeded, and that operating a forklift was merely one of

several job duties. It thus appears the VE improperly classified this work as medium

based on the DOT listing for a forklift operator. See Brown v. Barnhart, 390 F.3d

535, 539 (8th Cir. 2004) (under fourth step in sequential evaluation process, ALJ

must compare claimant’s RFC with physical and mental demands of PRW). Finally,

there was little evidence about Phillips’s job as a relief school-bus driver, other than

his testimony that he drove only two hours a day and his monthly earnings fell below

applicable guidelines. See 20 C.F.R. § 404.1574(b)(2). Although earnings do not

conclusively show that an employee has not engaged in SGA, the record does not

reflect that the low earnings were the result of Phillips’s choice to drive only parttime. See Reeder v. Apfel, 214 F.3d 984, 989 (8th Cir. 2000). We thus conclude that

the ALJ should have further developed the record on the duties and related functional

demands for the jobs he identified as PRW, see Kirby v. Sullivan, 923 F.2d 1323,

1327 (8th Cir. 1991) (ALJ has duty to develop record fully so he can compare

claimant’s RFC to actual functional demands of past employment); and we reverse

and remand for further proceedings consistent with this opinion. 

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