                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   _____________

                                  No. 99-1270WM
                                  _____________

Darrell E. Jenkins,                 *
                                    *
             Appellant,             *
                                    * On Appeal from the United
      v.                            * States District Court
                                    * for the Western District
                                    * of Missouri.
Kenneth S. Apfel, Commissioner      *
of Social Security,                 *
                                    *
             Appellee.              *
                               ___________

                              Submitted: September 16, 1999
                                  Filed: November 10, 1999
                                   ___________

Before RICHARD S. ARNOLD, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.


       Darrell E. Jenkins appeals the denial of his application for social-security
disability benefits. He argues that the Administrative Law Judge (ALJ) based the
denial on insubstantial evidence and improperly evaluated his allegations of subjective
pain. The District Court upheld the denial. We reverse.
                                           I.

       Mr. Jenkins is a 55-year-old man with a high-school education. From 1978 to
1995, he ran a dairy farm. He has no work experience outside farming. Mr. Jenkins
claims that he became disabled on January 1, 1995, because of severe pain and
weakness in his upper extremities. On March 13, 1995, he filed an application for
disability benefits. His claim was denied initially and on reconsideration. He filed a
request for a hearing, which was held on August 8, 1996.

       The ALJ decided that Mr. Jenkins was not entitled to disability benefits. The
ALJ found that Mr. Jenkins had a severe impairment but not one that qualified him for
benefits under the impairments listed in the regulations. The ALJ found that Mr.
Jenkins was unable to perform his past relevant work. The ALJ decided, however, that
given his residual functional capacity, Mr. Jenkins would be able to do light and
sedentary work. The ALJ did not believe Mr. Jenkins's testimony that his severe pain
limited his capacity to do such work. The ALJ found Mr. Jenkins's testimony
inconsistent, and credited the assessment of a non-treating physician who determined
that Mr. Jenkins had a greater capacity to lift and grasp than he claimed. The ALJ
believed this assessment because he found it consistent with the reports of Mr.
Jenkins's treating physicians. Based on this assessment and the testimony of a
vocational expert, the ALJ concluded that Mr. Jenkins was not entitled to disability
benefits. Mr. Jenkins appealed the ALJ's decision.

       The Appeals Council considered additional medical evidence not before the ALJ.
After the hearing, on November 18, 1996, Mr. Jenkins had begun regular treatments
with Dr. Janet Schwartzenberg, a rheumatologist. In deciding Mr. Jenkins's request for
review, the Appeals Council considered a Medical Source Statement from Dr.
Schwartzenberg and her reports from these post-hearing treatments. The Appeals
Council, however, determined that this evidence did not provide a basis for altering the
ALJ's decision. The Appeals Council denied Mr. Jenkins's request for review.

                                          -2-
                                           II.

      We review the decision of the ALJ to determine whether his findings are
supported by substantial evidence on the record as a whole. Pfitzner v. Apfel, 169 F.3d
566, 568 (8th Cir. 1999). In addition to evidence before the ALJ, the record includes
evidence that was submitted after the hearing and considered by the Appeals Council
in denying review. Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994). Evaluating such
evidence requires us to determine how the ALJ would have weighed the newly
submitted evidence if it had been presented at the original hearing. Id. In this case, the
new evidence considered by the Appeals Council provides substantial support for Mr.
Jenkins's arguments on appeal: first, that the ALJ's residual-functional-capacity finding
was not supported by substantial evidence, and second, that the ALJ incorrectly
evaluated the claims of disabling pain.

                                           A.

       The medical reports submitted after the hearing are evidence that Mr. Jenkins has
less residual functional capacity than the ALJ concluded. Adopting the assessment of
a non-treating physician, the ALJ concluded that Mr. Jenkins:

      "can lift and/or carry 10 pounds frequently and 20 pounds occasionally;
      can stand and/or walk about six hours . . . can sit about six hours . . . has
      limited ability to push and/or pull; can never climb ladders, ropes, or
      scaffolding; and has limited overhead reaching" (R. at 36).

By contrast, Dr. Schwartzenberg, a treating physician, concluded that Mr. Jenkins
could lift or carry only five pounds frequently (not ten), that he could carry or lift no
more than five pounds even occasionally (not twenty), and that he could stand or walk
just five hours (not six) and not more than one hour continuously (R. at 175-76). In



                                           -3-
summarizing Mr. Jenkins's impaired capacities, Dr. Schwartzenberg stated that the
problem with his shoulders "severely limits his ability to do anything" (R. at 177).

       Because Dr. Schwartzenberg's assessment conflicts with the assessment of the
non-treating physician, we must decide how the ALJ would have weighed them
relatively. Though the non-treating physician had never seen Mr. Jenkins, the ALJ
credited his assessment because it was consistent with the general diagnoses and
observations of the treating physicians (R. at 35). The treating physicians' diagnoses
and observations, however, did not include specific assessments of Mr. Jenkins's
capacity to lift, carry, sit, and stand.1 The non-treating physician's specific judgements
of Mr. Jenkins's capacities were inferences from other physicians' much more general
findings. By contrast, Dr. Schwartzenberg saw and treated Mr. Jenkins four times
before making her assessment. She is the only treating physician who has assessed and
quantified the claimant's capacity to lift, carry, sit, and stand. Because her assessment
was not available at the hearing, the ALJ had no choice but to rely on the assessment
of a non-treating physician.

       If he had possessed the new evidence, however, we think the ALJ would have
adopted Dr. Schwartzenberg's assessment of Mr. Jenkins's residual functional capacity
rather than the non-treating physician's assessment. A treating physician's opinion
should not ordinarily be disregarded and is entitled to substantial weight. Ghant v.
Bowen, 930 F.2d 633, 639 (8th Cir. 1991). By contrast, "[t]he opinion of a consulting
physician who examines a claimant once or not at all does not generally constitute
substantial evidence." Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998). There
is no other evidence in the record to support the ALJ's residual-functional-capacity


      1
       Indeed, Dr. Ferguson, the primary treating physician, specifically stated that he
was unable to make more specific quantifications of Mr. Jenkins's capacities and
requested that he be sent to physicians better equipped to make them if more precise
estimates were needed (R. at 149).

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finding besides the non-treating physician's assessment. This assessment alone cannot
be considered substantial evidence in the face of the conflicting assessment of a treating
physician. Henderson v. Sullivan, 930 F.2d 19, 21 (8th Cir. 1991). Moreover, Dr.
Schwartzenberg's reports undermine the ALJ's sole stated reason for crediting the non-
treating physician's assessment, its consistency with the findings of the treating
physicians (R. at 35). If the ALJ had possessed Dr. Schwartzenberg's assessment, he
could not have found this consistency.

       Accordingly, we hold that the residual-functional-capacity assessment adopted
by the ALJ was not supported by substantial evidence. Since the vocational expert's
testimony was based upon this assessment, we also hold that his testimony was not
substantial evidence that Mr. Jenkins could perform other substantial gainful activity.
Ness v. Sullivan, 904 F.2d 432, 436 (8th Cir. 1990).

                                           B.

       In addition, the new evidence supports the credibility of Mr. Jenkins's testimony
that he suffers from disabling pain. The ALJ adopted the finding of the non-treating
physician that Mr. Jenkins's complaints of disabling pain were "inconsistent" with
objective medical findings (R. at 35). The ALJ considered the absence of objective
medical support for Mr. Jenkins's claims of pain an "important factor" in discrediting
his testimony (ibid.). The non-treating physician's conclusion, however, is again in
conflict with the assessment of a treating physician, Dr. Schwartzenberg.

       Dr. Schwartzenberg observed "severe spasm of the musculature . . . secondary
to pain" when she moved the claimant's shoulders beyond 15 degrees (R. at 187),
"muscle spasm and twitching that was obviously unintentional in nature" after
movement of the triceps (ibid.), and "tenderness and muscle spasm in the thoracic area
in the paraspinal musculature" (R. at 182). In light of these personal experiences with
the patient, her examinations, and her physical findings, Dr. Schwartzenberg concluded

                                           -5-
that Mr. Jenkins's complaints of "constant neck, shoulders, arms and back pain, worse
[with] any attempt at movement or touch" were credible (R. at 179). She found it
credible that he would experience "pain from shoulders radiating down arms into
hands" that would cause him to "frequently drop things of any weight . . .," and that he
would experience constant fatigue and need to lie down unpredictably three to four
times daily for at least 45 minutes to cope with these symptoms.

      Dr. Schwartzenberg's opinion conflicts with the assessment of the non-treating
physician that Mr. Jenkins's complaints were inconsistent with his objective medical
condition. Again, we must determine how the ALJ would have weighed the
assessments relatively. For the same reasons discussed above, we hold that if the ALJ
had possessed the new evidence, he would have adopted the assessment of the treating
physician, Dr. Schwartzenberg, over the assessment of the non-treating physician.

                                          C.

       We also hold that the ALJ would have credited Mr. Jenkins's testimony of
disabling pain. Without the support of the non-treating physician's assessment, the
ALJ's remaining reasons for discrediting that testimony are insubstantial. By contrast,
Dr. Schwartzenberg's reports and other indicia of credibility strongly support Mr.
Jenkins's testimony of disabling pain.

      The ALJ gave only two reasons for discrediting Mr. Jenkins's testimony besides
the absence of objective medical evidence. First, the ALJ found that Mr. Jenkins did
not seek medical treatment between May, 1995, and August, 1996. Mr. Jenkins,
however, did see a chiropractor during that time (R. at 35). Moreover, Mr. Jenkins had
been told on his last visit to a physician that his condition would likely improve if he
continued his physician's prescribed regimen of pain medication, therapeutic exercise,
and rest, advice which Mr. Jenkins apparently did follow during this time (R. at 73,
150). Even if we characterize Mr. Jenkins's actions as a failure to seek medical

                                          -6-
treatment, we cannot agree that his reliance on a chiropractor and his physician's
prescribed course of therapy were inconsistent with severe pain. If following a doctor's
advice and seeking additional help are not probative of severe pain, then they are, at
least, not inconsistent with it. In addition, the claimant did later, of course, seek
medical treatment from Dr. Schwartzenberg.

       The ALJ also found that Mr. Jenkins's use of over-the-counter pain medication
at the time of the hearing was not suggestive of disabling pain. On this record,
however, this fact is inconclusive. Mr. Jenkins originally took prescription pain
medication. His physician later prescribed over-the-counter medication when the
original prescriptions proved ineffective (R. at 160). The physician's withdrawal of
prescription pain relief was based on his stated belief that it was not working, rather
than a belief that Mr. Jenkins didn't need effective pain relief. If the physician's
decision had been based, for example, on a disbelief of Mr. Jenkins's claims of pain or
upon the physician's success in treating him, then it would be suggestive of an absence
of severe pain. In this case, however, the physician's decision signaled only the
ineffectiveness of the prescription, not the absence of pain.

      Mr. Jenkins's claims of disabling pain are also supported by his history of past
hard work and now limited daily activities. Under Polaski v. Heckler, 739 F.2d 1320
(8th Cir. 1984), in order properly to evaluate subjective claims of pain, the ALJ is
required to take into account, inter alia, the claimant's work history and limitations of
his daily activities. In this case, these factors support Mr. Jenkins's claims.

       Before his impairment developed, Mr. Jenkins was a dairy farmer. From his
high school graduation until 1993, he worked twelve- to fourteen-hour days filled with
heavy physical labor: milking cows, shoveling feed, putting up hay, and repairing
fences (R. at 60). In the evenings, he did all the yard work at home (R. at 74). Even
in 1993, when he had lost much of his upper-body strength and flexibility, Mr. Jenkins
continued farming with his wife's help (R. at 158). Despite these efforts, today, Mr.

                                          -7-
Jenkins's farm lies fallow. He and his wife testified that his days are spent alone,
watching television, sometimes sitting and sometimes walking around their lawn,
occasionally visiting his mother (R. at 32, 65-69, 75-6). Mr. Jenkins has given up his
only hobbies: guitar playing, hunting, and fishing (R. at 66, 68-69). They testified that
he requires help to dress himself, comb his hair, bathe, open building doors, or make
a meal (R. at 32, 63-65, 67-69, 74-76.) His current limited activities support his claims
of disabling pain, especially in light of his past hard-working lifestyle.

                                          III.

        If the ALJ had possessed the evidence considered by the Appeals Council, we
conclude that he would have approved Mr. Jenkins's claims for disability benefits. Any
other conclusion would have lacked the support of substantial evidence on the record
as a whole. The ALJ would have had to reject the residual-functional-capacity
assessment of the non-treating physician, and would have had to abandon his
conclusion that Mr. Jenkins's claims of disabling pain were inconsistent with objective
medical evidence. In addition, the ALJ would have had no good reason to discredit
Mr. Jenkins's claims of disabling pain, supported as they are by the assessment of his
latest treating physician, his past hard work, and his now limited daily activities.

      Accordingly, the judgment of the District Court is reversed, and the cause
remanded with instructions to remand to the Commissioner for calculation and award
of benefits.

      It is so ordered.

LOKEN, Circuit Judge, dissenting.

      In my view, timing is the critical issue in this case. Darrell Jenkins filed his
application for disability benefits in March 1995, alleging a disability onset date of

                                          -8-
January 1, 1995. The hearing was held in August 1996, and the ALJ issued his adverse
decision in late September. Mr. Jenkins first saw Dr. Janet Schwartzenberg in
November 1996. Thus, she was not his treating physician during the time in question.
Her reports, which were submitted to the Commissioner’s Appeals Council in March,
April, and May of 1997, did not state whether, in her opinion, the physical impairments,
complaints of pain, and work limitations that she observed existed at their current level
of severity at the alleged onset date, or on the date of Mr. Jenkins’s hearing. Thus, I
agree with the district court that Dr. Schwartzenberg’s reports did not undermine the
substantial evidence in the administrative record supporting the ALJ’s adverse
determination. It may well be that Mr. Jenkins was disabled when Dr. Schwartzenberg
treated him. But that is grounds for a new disability application, not for reversing a
decision by the Commissioner that is supported by substantial evidence on the
administrative record as a whole. For these reasons, I respectfully dissent.

      A true copy.

             Attest:

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




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