Sherry Despain v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration1

United States Court of Appeals
For the Eighth Circuit
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No. 18-1927
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Sherry Despain
lllllllllllllllllllllPlaintiff - Appellant
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration1
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Jonesboro
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Submitted: January 17, 2019
Filed: June 14, 2019
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Before LOKEN, GRASZ, and STRAS, Circuit Judges.
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GRASZ, Circuit Judge.
Nancy A. Berryhill has been appointed to serve as Acting Commissioner of1
the Social Security Administration, and is substituted as appellee pursuant to Federal
Rule of Appellate Procedure 43(c).

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Sherry Despain appeals the district court’s judgment that the Social Security2
Administration (“SSA”) Commissioner’s decision to deny her disability benefits was
supported by substantial evidence. We affirm.
I. Background
Despain is a 52-year old woman from Harrisburg, Arkansas, who previously
worked as a packaging machine operator at Frito-Lay. She suffered from chronic
pain and obesity. In 2015, some back spasms and other pain conditions kept her away
from work long enough that she exhausted her permitted absences under the Family
and Medical Leave Act, 29 U.S.C. §§ 2601–2654. Because she knew she was no
longer capable of working her old job, she resigned. She did not apply for any new
jobs.
In June 2015, Despain applied for disability benefits, alleging disability
beginning on May 4, 2015. After the SSA denied her claim initially and on
reconsideration, she requested a hearing before an administrative law judge (“ALJ”).
The ALJ found Despain had six severe impairments: obesity, osteoarthritis of
both knees, degenerative disc disease of the lumbar spine, pes planus (flat feet),
anxiety, and depression. The ALJ also found none of those impairments individually
nor the combination of them were severe enough to satisfy the criteria for disability
benefits under SSA regulations.
The ALJ then determined Despain had the residual functional capacity (“RFC”)
to perform light work with some limitations. She would “need to sit or stand at will”
The Honorable Beth M. Deere, United States Magistrate Judge for the Eastern2
District of Arkansas, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c).
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and be limited to work (1) “with no climbing of ladders, ropes, or scaffolds, and no
balancing requirements,” (2) with only “occasional climbing of ramps and stairs,
stooping, kneeling, crouching, and crawling,” and (3) “where no lower extremity foot
control operation is necessary.” She also would be “limited to unskilled, simple,
routine, and repetitive job tasks, where the supervision is simple, direct, and concrete,
consistent with specific vocational preparation (SVP) 1 or 2 jobs that could be learned
within thirty days.”
Although Despain could not perform her past relevant work under this RFC,
testimony from a vocational expert indicated jobs with her RFC are available in the
United States economy. Based on that testimony, the ALJ found Despain was not
under a disability as defined by the Social Security Act.
The Social Security Appeals Council denied Despain’s petition for review,
making the ALJ’s decision the Commissioner’s final administrative decision.
Despain filed a complaint in the Eastern District of Arkansas seeking review. The
district court affirmed the Commissioner’s decision, and Despain timely appealed.
II. Standard of Review
We review de novo the district court’s decision affirming the denial of social
security benefits and will affirm “if the Commissioner’s decision is supported
by . . . substantial evidence on the record as a whole.” Ash v. Colvin, 812 F.3d 686,
689 (8th Cir. 2016) (quoting McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir.
2010)). “Substantial evidence is less than a preponderance, but is enough that a
reasonable mind would find it adequate to support the Commissioner’s conclusion.”
Id. (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). If the record
supports two inconsistent conclusions, this court must affirm the Commissioner’s
choice among those two conclusions. Id. at 689–90.
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III. Analysis
On appeal, Despain solely challenges the ALJ’s determination of her RFC. As
the claimant, she bears the burden of proof to establish her RFC. See Goff v.
Barnhart, 421 F.3d 785, 790 (8th Cir. 2005). She argues the Commissioner gave
inadequate deference to her treating physician’s opinion and the RFC is unsupported
by the record.
“The opinion of a treating physician is accorded special deference under the
social security regulations” and is “normally entitled to great weight.” Vossen v.
Astrue, 612 F.3d 1011, 1017 (8th Cir. 2010) (quoting Prosch v. Apfel, 201 F.3d 1010,
1012–13 (8th Cir. 2000)). “[A] treating physician’s opinion ‘should be granted3
controlling weight if it is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in the record.’” Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015) (quoting
Cunningham v. Apfel, 222 F.3d 496, 502 (8th Cir. 2000)). However, a treating
physician’s opinion as to whether a patient is disabled or unable to work is not
dispositive because these are “issues reserved to the Commissioner and are not the
type of opinions which receive controlling weight.” Vossen, 612 F.3d at 1015;
accord Cox v. Astrue, 495 F.3d 614, 619–20 (8th Cir. 2007) (“Even though the RFC
assessment draws from medical sources for support, it is ultimately an administrative
determination reserved to the Commissioner.”).
In May 2016, Despain’s treating physician, Dr. Michael Crawley, completed
a “Medical Source Statement-Physical” regarding Despain’s ongoing pain in her
We note the SSA recently issued rules regarding treating physicians. See3
Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844
(Jan. 18, 2017); see also 82 Fed. Reg. 15132 (Mar. 27, 2017) (amending and
correcting the rules). Because the ALJ order in Despain’s case predates the new
rules, we do not address them.
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back, hips, and knees. The boxes he checked on the form essentially indicated seven
conclusions imposing limitations on Despain. First, she could lift and carry ten
pounds maximum for 1/3 to 2/3 of an eight-hour day. Second, she could stand for
about three hours per eight-hour day and sit about two hours per eight-hour day.
Third, she would need frequent rest periods and longer-than-normal breaks but would
not need the opportunity to shift at will from a sitting or standing position. Fourth,
she would not have the physical stamina to complete a normal work day or week, let
alone maintain an ordinary work routine or a full-time work schedule. Fifth, she
could reach in all directions and manipulate objects for 2/3 of an eight-hour work day.
Sixth, she would suffer a decreased ability to concentrate and persist in a job setting
due to her medications. Seventh, her impairments would cause her to be absent from
work about three days per month. Dr. Crawley left the portion of the form blank that
asked for the medical findings supporting the limitations.
Because Dr. Crawley’s opinion in this case is conclusory, the ALJ correctly
examined the underlying medical record to determine whether it supported his
conclusion. A conclusory report from a treating physician may still be entitled to
controlling weight if it is accurate when viewed in the context of the medical record.
See Cox v. Barnhart, 345 F.3d 606, 609 (8th Cir. 2003). An ALJ properly discredits
such a report, though, if it is unsupported by the medical record. See Stormo v.
Barnhart, 377 F.3d 801, 805–06 (8th Cir. 2004).
The record indicates significant sources of pain and Dr. Crawley’s familiarity
with the pain because he served as Despain’s primary care physician since February
2014 and had treated her on more than a dozen occasions. As the ALJ noted, medical
records from before her alleged onset of disability show complaints of back, foot, and
knee pain over time; obesity; and diagnoses of lumbar strain, osteoarthritis of the
knees, and pes planus. After her alleged onset of disability, medical records from Dr.
Crawley and other treating physicians showed continuing back, foot, and knee pain,
and one abnormal reflex, but they also showed no resulting limit to her range of
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motion. A lumbar spine MRI indicated mild degenerative changes, mild disc bulging,
neuroforaminal narrowing (reduced opening of the spinal canal), and a small
herniation. The record is mixed on whether her doctors recommended surgery for any
of these spinal issues. Despain’s physical therapy records also indicate she was able
to tolerate therapy without increased pain, even if the record is mixed about the
success of physical therapy.
Like the ALJ, we do not believe these records adequately support the
limitations Dr. Crawley stated in 2016. The records of continued pain do not support
limitations beyond those the ALJ applied or otherwise render Despain completely
unable to perform light work. Thus, because the ALJ discredited the conclusory
report to the extent it went beyond the submitted records, the ALJ’s consideration of
the treating physician’s opinion was appropriate.
Beyond the issue of the ALJ’s deference to Dr. Crawley, Despain argues the
evidence does not support a conclusion that she “can meet the demands of light work
by sitting, standing, or walking for a full eight-hour day, five days a week.” In
assessing Despain’s RFC, the ALJ considered Dr. Crawley’s treatment notes, other
physicians’ notes, Despain’s treatment, her daily activities, and the opinions of the
state agency medical consultants who found Despain had the RFC to perform light
work with postural limits. Then, the ALJ placed several restrictions on light work
that accounted for her proven limitations. While Despain correctly notes the record
is mixed on whether she declined back surgery rather than being advised it was not
needed, even presuming that fact in her favor does not alter the ALJ’s main
conclusion about Despain’s pain continuing at a level that could be accommodated
with work restrictions. Nothing in the record proves her pain exceeded the amount
acknowledged in the RFC limitations. Accordingly, the ALJ’s conclusion Despain
did not meet her burden to prove a more restricted RFC is supported by substantial
evidence.
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IV. Conclusion
We affirm the judgment of the district court that the Commissioner’s decision
to deny disability benefits was supported by substantial evidence.
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