                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-3863
                                    ___________

Robert C. House,                         *
                                         *
      Plaintiff - Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Southern District of Iowa.
Michael J. Astrue,                       *
                                         *
      Defendant - Appellee.              *
                                    ___________

                               Submitted: April 13, 2007
                                  Filed: September 14, 2007
                                   ___________

Before LOKEN, Chief Judge, BYE and RILEY, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       Robert House appeals the district court's1 order affirming the decision of the
Commissioner of Social Security to deny House's application for disability insurance
and supplemental security income benefits under Title II, Title XVI, and Title XVIII
of the Social Security Act. See 42 U.S.C. §§ 401 et seq., 1381 et seq., 1395c et seq.2

      1
       The HONORABLE CHARLES R. WOLLE, United States District Judge for
the Southern District of Iowa.
      2
        The same analysis determines disability under Title II and Title XVI. Russell
v. Sullivan, 950 F.2d 542, 543 n.2 (8th Cir. 1991). Title XVIII provides health care
benefits for persons under 65 entitled to Title II benefits for at least 24 months.
The parties agree that the critical issue on appeal is whether substantial evidence
supports the Administrative Law Judge’s (ALJ's) decision to give “little weight” to
a treating physician's opinions that House cannot tolerate even one hour of prolonged
sitting and must have the ability to elevate his legs at least parallel to the ground to
avoid worsening the chronic lymphedema condition in his lower left leg. After careful
review of the administrative record focused on this issue, we affirm.

       House claims that he is disabled from a combination of impairments including
chronic lymphedema3 in his lower left leg, recurrent deep vein thrombosis (clotting)
in his legs which has caused pulmonary embolisms, obesity, depression, and
borderline intellectual functioning. These conditions severely limit his ability to stand
and walk. After a hearing, the ALJ denied the claim. The Commissioner's Appeals
Council remanded, primarily for further consideration of the opinions of House's
treating physician, Dr. Bret McFarlin, as those opinions might be clarified and
supplemented on remand. The ALJ held two additional hearings and again denied the
claim, finding that House has severe impairments that leave him unable to perform his
past relevant work but is not disabled because he retains the residual functional
capacity to perform certain unskilled sedentary jobs such as parking lot cashier,
cafeteria cashier, hand packager, and office helper.

       The medical evidence in the record reflects that House was hospitalized for
three days in March 2001 when he experienced swelling and pain in his lower left leg
after working eleven hours the prior day at a construction job. He was bed-rested with
the leg elevated and treated with anti-coagulant medications until testing revealed no
deep vein thrombosis. Dr. McFarlin stated on a hospital discharge report that House



      3
        Lymphedema is an abnormal accumulation of lymph fluid in body tissue,
caused by disruption of the lymphatic system that normally drains the fluid away. Its
effects can range from minimal to incapacitating. The American Medical Association
Encyclopedia of Medicine 655 (Dr. Charles B. Clayman ed., 1989).

                                          -2-
was fitted for compression hose and told to exercise and change his diet; no work
restrictions were noted.

       On May 28, 2001, House was hospitalized with shortness of breath from a
pulmonary embolism. Dr. McFarlin stated in his discharge report that House was
released five days later with a prescription for Coumadin, an anti-coagulant, and a
work restriction of “[n]o prolonged standing greater than 1-2 hours.” On July 25, he
was again hospitalized, this time for six days, for a pulmonary embolism after he
stopped taking Coumadin. Dr. McFarlin’s discharge report noted that Coumadin was
again prescribed and that House was instructed “about his need to keep active.” No
work restrictions were noted. In September 2001 Dr. McFarlin saw House for a
regular monthly follow-up and noted that his lymphedema was chronic but stable.

      In a December 2001 Residual Functional Capacity Assessment, Dr. Lawrence
Staples noted that House's “left lower extremity lymphedema was stabilizing.” Dr.
Staples opined that House could lift twenty pounds occasionally and ten pounds
frequently, could stand or walk six hours and sit six hours in a work day, and was
therefore “capable of work activities.”

       In a June 2002 disability letter, Dr. McFarlin described House's treatment since
March 2001 and opined that House had “severely limited range of motion and ability
to ambulate, stand for extended periods or time, or bear any significant weight on his
left lower extremity.” Dr. McFarlin noted that lymphedema “is a permanent,
irreversible state with no satisfying therapy” and therefore House “will be doomed to
a life of anticoagulation therapy and a limited physical activity.” In July, Dr.
McFarlin's notes from a periodic check-up stated:

      Lymphedema, this appears to be a permanent, irreversible, disabling
      condition for this individual, greatly limiting his ability to ambulate or
      pursue meaningful levels of activity. Even two hours of mostly
      sedentary but standing work will greatly increase his symptoms and

                                         -3-
      diminish his ability to ambulate without assistance. I have encouraged
      him to again pursue a disability application.

       In November 2002, another physician in Dr. McFarlin's clinic noted that House
was “doing very well.” He had lost weight, there was less swelling in his left leg, and
he was walking and exercising more. In December, House sprained his ankle while
raking leaves. In January 2003, his physical therapist noted he was walking without
difficulty, except for the sprained ankle, and was on a home exercise program for
strength and cardiovascular fitness. In March 2003, House reported no changes in left
leg swelling and said he tries to keep his legs elevated as much as possible. In August
2003, he told a physician’s assistant that his left calf hurt if he danced or walked a lot.

       On September 29, 2003, Dr. McFarlin wrote the Iowa Division of Vocational
Rehabilitation that House suffers from a “chronic and permanent disabling condition,”
explaining that recurrent deep vein thrombosis required “a lifelong course of
anticoagulation” and severe lower left leg lymphedema caused swelling and pain that
“will greatly limit Mr. House's ability to perform any meaningful act of employment
that might involve walking, standing, ambulating, or lifting to any significant degree.”
However, Dr. McFarlin added, it is “not unrealistic to think” that House could perform
“a sedentary occupation” without worsening his health problem.

      House was hospitalized for pneumonia in January 2004. Dr. McFarlin's
discharge report stated that House could return to work. At a May 2004 six-month
check-up, House reported no pain in his legs, which he felt were staying the same size.
Dr. McFarlin described the lymphedema as stable.

       In June 2004, Dr. McFarlin responded to a request from House’s attorney “to
clarify prior descriptions” of House’s condition. Dr. McFarlin wrote that his prior use
of the word “sedentary” did not mean the Social Security definition, but rather that
House “could not be expected to spend significant periods of time ambulating,


                                           -4-
standing upright, or sitting without aggravating the lymphedema” (emphasis added).
Dr. McFarlin then opined that House could not tolerate an eight-hour workday with
“any periods of lifting, standing, sitting, or walking for periods of time measured even
in multiple minutes, let alone hours.” A job involving prolonged periods of sitting
“would necessitate a special prosthetic chair with the ability to elevate legs.”

       At the November 2004 supplemental hearing, the vocational expert testified that
he had never seen a “special prosthetic chair” in the workplace. He opined that the
need to elevate one's legs to waist-level or higher “would preclude employment,” but
the need to raise House's legs onto a box underneath his feet “could be
accommodated.” After the hearing, House submitted a second letter from Dr.
McFarlin explaining that his reference to a special prosthetic chair was not intended
to prescribe a specific chair. “Ideally,” Dr. McFarlin opined, House’s left leg “would
be elevated as much as possible . . . at least parallel with the ground” in a chair whose
capacity equaled or exceeded House's substantial weight. In concluding, the letter
stated Dr. McFarlin's intent “to clarify and reiterate my strong belief that Mr. House
is a legitimate candidate for long term and permanent disability.”

        The ALJ’s lengthy opinion described House’s extensive medical history and his
subjective complaints in detail. In determining residual functional capacity, the ALJ
gave significant weight to Dr. McFarlin’s opinion that House has “severe limitations
in his ability to stand or walk.” However, the ALJ gave little weight to Dr. McFarlin's
opinions that prolonged sitting, “measured in terms of minutes, not hours,” and the
inability to elevate his legs at least to waist level while working would exacerbate
House's leg problems. These opinions, the ALJ explained, were not supported by the
medical evidence and House’s own testimony, which indicate that House's lower leg
condition will not be exacerbated if he is employed at a sedentary job where “he is
allowed to get up and move around every ½ to one hour during the day.” The ALJ
then found that House’s severe leg impairments preclude him from performing his
past relevant work and many work-related tasks, but he retains the residual functional

                                          -5-
capacity to lift and carry up to twenty pounds occasionally and ten pounds frequently,
to sit for thirty to sixty minutes at a time for about six hours in an eight-hour work
day, and to stand or walk a total of about two hours in an eight-hour work day. The
ALJ credited the vocational expert's testimony that a person with these abilities can
perform certain sedentary jobs which exist in significant numbers in the national
economy, including parking lot cashier, cafeteria cashier, hand packager, and office
helper. Accordingly, House was not disabled.

       A treating physician’s opinion is given controlling weight “if it is well-
supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” Reed v. Barnhart, 399 F.3d
917, 920 (8th Cir. 2005) (quotation omitted). However, while entitled to special
weight, it does not automatically control, particularly if “the treating physician
evidence is itself inconsistent.” Bentley v. Shalala, 52 F.3d 784, 786 (8th Cir. 1995);
see Wagner v. Astrue, No. 06-3580, slip op. at 10-11 (8th Cir. Aug. 24, 2007);
Guilliams v. Barnhart, 393 F.3d 798, 803 (8th Cir. 2005). Here, the inconsistencies
are profound. In treatment notes and hospital discharge reports, Dr. McFarlin noted
a work limitation on “prolonged standing greater than 1-2 hours” only once, after a
May 2001 pulmonary embolism, and he opined in September 2003 that House could
perform sedentary work. Dr. McFarlin consistently described the lymphedema
condition as stable and as being aggravated by standing or walking, not by sitting. His
July 2002 treatment notes, for example, reported that “[e]ven two hours of mostly
sedentary but standing work will greatly increase his symptoms and diminish his
ability to ambulate without assistance.” By contrast, when writing House's attorney
in June 2004 after the Appeals Council remand, and in November 2004 following the
supplemental hearing, Dr. McFarlin for the first time opined that prolonged sitting will
exacerbate the lower left leg lymphedema and only elevating House's leg above waist
level in a special chair will avoid exacerbating that condition. As Dr. McFarlin had
been urging House to seek disability benefits since before June 2002, the ALJ had
good reason to discount the new inconsistent opinions that House lacked the capacity

                                          -6-
to engage in sedentary occupations that require prolonged sitting. These opinions
were rather obviously based upon Dr. McFarlin's understanding of the relevant
disability criteria, not on medical evidence. A treating physician's opinion that a
claimant is disabled or cannot be gainfully employed gets no deference because it
invades the province of the Commissioner to make the ultimate disability
determination. See Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir. 2002).

        In addition, other substantial evidence in the record supports the ALJ’s decision
to discount these opinions. A disability report House completed soon after he applied
for disability benefits in July 2001 stated that he had problems standing and walking
but made no mention of sitting. That same month, he was hospitalized for a second
pulmonary embolism after failing to take his prescribed medication; a doctor told him
he needed to keep active. In a November 2001 Social Security questionnaire, House
stated that he could stand or sit for two hours and walk half a mile. House testified
that, from 2001 through 2003, he worked four hours per day, twenty hours per week,
cooking lunch for four or five people at the rescue mission where he lived. As we
noted in Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005), this is “substantial,
indeed compelling, evidence inconsistent with [Dr. McFarlin's] assessment.” House
also received assistance from the Iowa Division of Vocational Rehabilitation Services
beginning in August 2003; the agency's records report that he was actively looking for
work between February and June 2004. In September 2004, he told a psychologist
that he wanted to get back into the job market and could stand for a couple of hours
per day. At the hearing, House testified that he currently spends most of his days
sitting, standing, or walking. He testified that he can sit for up to thirty minutes at a
time and then has to stand up and walk around. His current job at the rescue mission
involves cleaning rooms, and he climbs stairs, with some difficulty, to his room on the
second floor.

      After careful review, we conclude that substantial evidence supports the ALJ's
findings giving little weight to Dr. McFarlin's opinions regarding House’s inability to

                                          -7-
tolerate prolonged sitting and the need to elevate his legs to waist level during a work
day. The medical evidence reflects that elevating his lower left leg alleviates swelling
and that prolonged periods of elevation in the hospital were needed when House
suffered severe swelling after working eleven-hour days at construction or failing to
take his prescribed medication and to remain active. But the issue is whether his
chronic lymphedema could tolerate a sedentary job at which his legs would be
elevated with a box under his feet, he would be able to get up and walk around after
one-half hour to one hour of sitting, and he could elevate his legs to waist level during
breaks, lunch periods, in the evenings, and on weekends. The evidence on this issue
is mixed, and our task is to determine whether the Commissioner’s decision is
supported by substantial evidence on the administrative record as a whole, not to
substitute our fact-finding for the Commissioner's. When substantial evidence
supports the Commissioner’s findings and conclusion, we may not reverse because
substantial evidence would also support the opposite conclusion. See Moad v.
Massanari, 260 F.3d 887, 890 (8th Cir. 2001).

      Accordingly, the judgment of the district court is affirmed.

BYE, Circuit Judge, dissenting.

      I respectfully dissent as I do not believe there is substantial evidence in the
record to support the administrative law judge's (ALJ's) rejection of the treating
physician's opinion regarding Robert House's need to elevate his legs as much as
possible during the day.

      The ALJ gave two reasons for rejecting the treating physician's opinion
regarding House's need to elevate his legs. Specifically, the ALJ said:

      There is nothing in the record to support Dr. McFarlin's assertion that the
      claimant's left lower extremity lymphedema will be exacerbated if he


                                          -8-
      cannot elevate both of his legs throughout the day. More importantly,
      the medical evidence indicates that the claimant developed recurrent
      deep vein thrombosis and pulmonary embolism in June 2001 because he
      stopped taking Coumadin, not because he did not spend most of the day
      with his legs elevated (Exhibit 6F). Since the June 2001 hospitalization,
      the claimant has been taking Coumadin faithfully and he had not
      developed further deep vein thrombosis or pulmonary embolism.
      Finally, the claimant did not testify that he needed to elevate his legs
      during the day. It is clear that the statements of opinion were
      manufactured for the purpose of this adjudication, and are not well
      supported by the clinical findings and/or laboratory studies (20 CFR
      404.1527(d), 416.972(d)).

Administrative Record at 22.

       Thus, the two reasons the ALJ gave for rejecting the treating physician's
opinion on House's need to elevate his legs were: (1) House was hospitalized because
he failed to take his Coumadin, not because he was not elevating his legs; and (2)
House did not testify he needed to elevate his legs.

       The ALJ's first reason simply does not support the conclusion House does not
need to elevate his legs. The only conclusion that follows from the fact House was
hospitalized for failure to take his Coumadin is House will require hospitalization if
he fails to take his Coumadin. The issue whether he should also elevate his legs is an
entirely separate matter.

        The second reason given by the ALJ is not supported by substantial evidence
in the record. In fact, the record indicates just the opposite – House specifically
testified he needs to – and does – elevate his legs:

      Q.     About how long can you sit?
      A.     Usually 20 minutes. If I try, I can sit 30 at the most.


                                         -9-
      Q.      And then after 20 minutes, what happens?
      A.      I have to get up and stand and walk around.
      Q.      If you're sitting down, do you need to have your legs elevated?
      A.      Yes.
      Q.      All the time or - -
      A.      Supposed to be, but I try to elevate them as much as possible.

Administrative Record at 524 (emphasis added).

      House also testified he elevates his leg while driving:

      Q.      Do you have that pain all the time or does it come and go?
      A.      It's pretty much all the time. I got to keep moving my leg and
              even when I drive I have to keep picking my leg up and moving
              it.

Id. at 546.

       When the ALJ asked House about his daily activities, such as cooking and
cleaning at the mission, the ALJ did not ask House whether he took breaks to elevate
his legs.

        In sum, I do not believe there is substantial evidence in the record to support the
ALJ's rejection of the treating physician's opinion about House's need to elevate his
leg during a typical work day. The record indicates House may have to amputate his
leg if his lymphedema does not improve. The record also indicates a failure to elevate
his leg aggravates the lymphedema. Because the adverse consequences of House's
lymphedema could be severe, I believe this is an issue which should be looked at more
closely in a further hearing after additional information is developed on whether and
how often House needs to elevate his legs during a typical work day.


                                           -10-
     For the reasons stated, I would reverse and remand for additional consultative
exams to be performed to address House's need to elevate his legs during the work
day.
                      ______________________________




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