Donald Fentress v. Carolyn W. Colvin , 854 F.3d 1016 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-1933
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Donald Fentress
lllllllllllllllllllll Plaintiff - Appellant
v.
Nancy A. Berryhill,1 Acting Commissioner of Social Security
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Jonesboro
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Submitted: January 11, 2017
Filed: February 25, 2017
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Before SMITH2 and KELLY, Circuit Judges, and SIPPEL,3 District Judge.
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1
Nancy A. Berryhill has been appointed to serve as Acting Commissioner of
Social Security, and is substituted as appellee pursuant to Federal Rule of Appellate
Procedure 43(c).
2
The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
3
The Honorable Rodney W. Sippel, Chief Judge, United States District Court
for the Eastern District of Missouri, sitting by designation.
SIPPEL, District Judge.
Donald Fentress appeals the decision of the district court4 affirming the
Commissioner’s partial denial of his applications for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”) benefits under the Social Security
Act. See 42 U.S.C. §§ 401, 1381. The Commissioner found Fentress was not
disabled from September 22, 2005 through August 23, 2012, but became disabled on
August 24, 2012. Because the decision of the Commissioner is supported by
substantial evidence on the record as a whole, we affirm.
I. Background
Fentress suffers from asthma, chronic obstructive pulmonary disease, high
blood pressure, depression, hepatitis C, diabetes, liver damage, hepatomegaly, uveitis
of the left eye, coronary artery disease, and degenerative disc disease. He applied for
DIB and SSI benefits on July 27, 2006, alleging an onset date of September 22, 2005.
After his claims were denied at the administrative level, Fentress sought review in
district court, which remanded his claims to the Commissioner for further
proceedings. Fentress then filed new applications for DIB and SSI benefits, alleging
an onset date of September 30, 2009. These applications were consolidated with his
initial applications, and on December 1, 2011, an administrative law judge (“ALJ”)
denied all of Fentress’s claims. Fentress pursued an administrative appeal, and in
November 2013, the Appeals Council remanded the case to the ALJ for further
proceedings. On April 7, 2014, a different ALJ considered Fentress’s claims and
4
The Honorable Joe J. Volpe, United States Magistrate Judge for the Eastern
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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issued a partially favorable decision, finding him disabled since August 24, 2012, but
not disabled from September 30, 2009 through August 23, 2012.
On July 15, 2015, the Appeals Council reviewed Fentress’s case and issued its
own opinion. After consideration of all of Fentress’s applications, the Appeals
Council agreed with the ALJ that Fentress was disabled as of August 24, 2012, but
concluded that he was not disabled from the initial onset date of September 22, 2005,
through August 23, 2012.
Like the ALJ before it, the Appeals Council evaluated Fentress’s disability
claims according to the five-step sequential evaluation process prescribed by the
Social Security Regulations.5 See Goff v. Barnhart, 421 F.3d 785, 789-90 (8th Cir.
2005); 20 C.F.R. § 404.1520(a)-(g). At step four of the analysis, the Appeals Council
determined that Fentress retained the residual functional capacity (“RFC”) to perform
light work, with modifications. See 20 C.F.R. § 404.1545(a) (defining RFC as “the
most [a claimant] can still do despite” his “physical or mental limitations”). In
reaching its decision, the Appeals Council reviewed, and ultimately discounted, an
opinion rendered by Fentress’s treating physician, Bradford Waters, M.D., that
5
The first step of the analysis requires the Commissioner to decide whether a
claimant is engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(b). If he
is not, the Commissioner moves on to the second step of the analysis, which requires
her to assess whether a claimant has a severe impairment that “significantly limits [the
claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. §
404.1520(c). If severe impairments are found, the Commissioner determines at the
third step whether the claimant’s impairments meet or equal the criteria of a “listed
impairment,” which is presumed to be disabling. 20 C.F.R. § 404.1520(d). If no
listed impairments are found, the Commissioner assesses a claimant’s residual
functional capacity and considers whether a claimant can perform past relevant work.
20 C.F.R. § 404.1520(e)-(f). If he cannot, the Commissioner decides at the fifth and
final step of the analysis whether the claimant is able to do any other work
considering his residual functional capacity, age, education, and work experience.
20 C.F.R. § 404.1520(g). If he cannot, the claimant is disabled.
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chronic pain and fatigue would prevent Fentress from working. The Appeals Council
assigned little weight to the opinion of Dr. Waters as inconsistent with other
substantial evidence in the record, including numerous unremarkable physical
examinations, Fentress’s own denials of pain, and the opinion of a consulting
physician, Bruce Randolph, M.D., who examined Fentress.
Based on the testimony of a vocational expert, the Appeals Council found that
there were a significant number of jobs in the national economy which Fentress could
perform with his modified light work RFC prior to August 24, 2012. Therefore, at
step five of the analysis the Appeals Council concluded that Fentress was not disabled
from his initial alleged onset date of September 22, 2005, through August 23, 2012,
but was disabled as of August 24, 2012. This decision stands as the final decision of
the Commissioner.
Fentress then sought review in the district court under 42 U.S.C. § 405(g). The
district court affirmed the decision of the Commissioner. Fentress now appeals,
arguing that the Commissioner erred in discounting the opinion of his treating
physician and when formulating his RFC.
II. Discussion
“We review the district court’s decision upholding the denial of social security
benefits de novo.” McDade v. Astrue, 720 F.3d 994, 997-98 (8th Cir. 2013). “We
will uphold the [Commissioner’s] decision to deny benefits if that decision is
supported by substantial evidence in the record as a whole.” Perks v. Astrue, 687
F.3d 1086, 1091 (8th Cir. 2012). “Substantial evidence is less than a preponderance,
but enough that a reasonable mind might accept it as adequate to support a decision.”
Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). We consider both evidence that
detracts from the Commissioner’s decision, as well as evidence that supports it, see
Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011), but we will not reverse simply
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because some evidence supports a conclusion other than that reached by the
Commissioner. Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006).
Fentress argues that the Commissioner erred in the determination that he could
perform light work6 prior to August 24, 2012. The RFC assessment must be based
on “all the relevant evidence in [the] case record.” 20 C.F.R. § 404.1545(a). In
evaluating the RFC assessment, “we consider all of the evidence that was before the
[Commissioner], but we do not re-weigh the evidence, and we defer to the
[Commissioner’s] determinations regarding the credibility of witnesses so long as
such determinations are supported by good reasons and substantial evidence.” Vester
v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The record must include some
medical evidence which supports the RFC. Dykes v. Apfel, 223 F.3d 865, 867 (8th
Cir. 2000).
Fentress contends that the Commissioner improperly discounted the opinion
of Dr. Waters, who opined that Fentress was “unable to perform sustained gainful
employment” due to pain and fatigue. At the time this opinion was rendered, Dr.
Waters had only been treating Fentress for a few months. See 20 C.F.R. § 404.157(c)
(length of treatment relationship one factor to consider when weighing doctor’s
opinion). The Commissioner considered Dr. Waters’s opinion, but ultimately
assigned it little weight as inconsistent with other, substantial evidence in the record.
“A treating physician’s opinion should not ordinarily be disregarded and is entitled
to substantial weight.” Cunningham v. Apfel, 222 F.3d 496, 502 (8th Cir. 2000).
However, the Commissioner “may discount or even disregard the opinion of a
treating physician where other medical assessments are supported by better or more
thorough medical evidence.” Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010)
(quoting Goff, 421 F.3d at 790). A physician’s opinion that a claimant is incapable
6
The Regulations define “light work” as lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R.
§ 404.1567(b).
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of gainful employment is often not entitled to significant weight. Bradley v. Astrue,
528 F.3d 1113, 1116 (8th Cir. 2008).
Here, the Commissioner cited other, substantial evidence in the record that was
inconsistent with Dr. Waters’s evaluation, including physical examinations during the
same time period which showed normal muscle strength, range of motion, and no pain
or weakness in extremities, as well as Fentress’s own contemporaneous reports
denying problems with standing, walking, vision, weakness, dizziness, pain, or loss
of motor skills. See Goff, 421 F.3d at 795 (lack of corroborating medical evidence
is one factor to consider in evaluating subjective complaints of pain). In discounting
Dr. Waters’s opinion, the Commissioner also cited the opinion of Dr. Randolph, who
found after examination that Fentress’s extremities, strength, gait, and limb functions
were normal and unimpaired. Diagnostic test results also demonstrated that
Fentress’s symptoms were generally well-controlled when he abstained from illegal
drug use and was compliant with treatment recommendations. See Wildman, 596
F.3d at 966 (claimant’s noncompliance with treatment recommendations may be
taken into account when deciding whether to give treating physician’s opinion
controlling weight). Fentress’s daily activities, which included fishing and dog
training, were likewise inconsistent with Dr. Waters’s opinion regarding Fentress’s
limitations. It is the function of the Commissioner to weigh conflicting evidence and
to resolve disagreements among physicians. Kirby, 500 F.3d at 709.
After reviewing the entire record in this case and considering the objective test
results, Fentress’s subjective reports and complaints of pain, as well as the opinions
of treating and consulting physicians, the Commissioner concluded that Fentress was
able to perform light work, with limitations, for a period of time before he became
disabled under the Guidelines. The Commissioner did not simply adopt a light work
RFC wholesale, but rather restricted Fentress’s RFC based on his credible limitations
of record. For these reasons, we find the Commissioner’s determination to be within
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a reasonable “zone of choice.” See Owen v. Astrue, 551 F.3d 792, 798 (8th Cir.
2008).
While it is not surprising that, in an administrative record which exceeds 1,500
pages, Fentress can point to some evidence which detracts from the Commissioner’s
determination, good reasons and substantial evidence on the record as a whole
support the Commissioner’s RFC determination and the decision to discount Dr.
Waters’s opinion. See Igo v. Colvin, 839 F.3d 724, 731 (8th Cir. 2016). “We may not
reverse that decision simply because we would have reached a different conclusion
than [the Commissioner] or because substantial evidence supports a contrary
conclusion.” Id. at 728 (citing Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir.
2014)); Goff, 421 F.3d at 789 (“If, after reviewing the record, the court finds it is
possible to draw two inconsistent positions from the evidence and one of those
positions represents the [Commissioner’s] findings, the court must affirm the
[Commissioner’s] decision.” (citing Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th
Cir. 2001))).
III. Conclusion
Because the Commissioner’s decision to deny benefits prior to August 24,
2012, is supported by substantial evidence on the record as a whole, the judgment of
the district court is affirmed.
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