Nicholas Dereschuk v. Nancy A. Berryhill

United States Court of Appeals
For the Eighth Circuit
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No. 16-2282
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Nicholas Dereschuk
lllllllllllllllllllll Plaintiff - Appellant
v.
Nancy A. Berryhill, Acting Commissioner of Social Security
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: March 9, 2017
Filed: June 21, 2017
[Unpublished]
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Before LOKEN, MURPHY, and BENTON, Circuit Judges.
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PER CURIAM.
Nicholas Dereschuk was involved in a motor vehicle accident that injured his
back in 2008, when he was 21 years old. He developed progressive hip pain and
underwent arthroscopic right hip surgery in December 2010 and arthroscopic left hip
surgery in February 2011. He applied for Social Security disability insurance benefits
and supplemental security income in June 2011, alleging an onset date of May 1,
2010, due to scoliosis, spondeothylosis, “hip problems,” and depression. After the
Commissioner denied the application initially and on reconsideration, Dereschuk
requested a hearing before an Administrative Law Judge (ALJ). On May 24, 2013,
the ALJ held a hearing at which Dereschuk and a vocational expert (VE) testified.
On July 25, 2013, the ALJ denied Dereschuk’s application. The ALJ found
that Dereschuk had several severe impairments: “degenerative joint disease of the
hips bilaterally; status-post bilateral arthroscopic surgery; right knee sprain injury;
degenerative disc disease of the spine; major depression; and anxiety disorder.” The
ALJ found that these impairments alone or in combination did not meet or equal a
listing impairment, including Listing 1.02 for major dysfunction of a joint, and
Listing 12.04 for affective disorder. See 20 C.F.R. Part 404, Subpart P, Appendix 1.
Considering the entire administrative record, the ALJ found Dereschuk had the
residual functional capacity (RFC) to perform sedentary work as defined in 20 C.F.R.
§§ 404.1567(a) and 416.967(a), with several limitations.1 In reaching this RFC
assessment, the ALJ found that, along with other inconsistencies, Dereschuk’s
“reported activities of daily living, course of treatment, medication management, and
clinical assessments do not support his disabling allegations. The evidence shows
that [Dereschuk] has been managed with a course of treatment, shown improvement
with physical therapy and pool therapy, and at times has been non-compliant with
taking medications as prescribed or following through with physical therapy.” The
ALJ noted that Dereschuk applied for and received Minnesota unemployment
1
The limitations were: No climbing ladders, ropes or scaffolds, no standing or
working on uneven ground, no crawling, no work at heights or with hazards or
hazardous machinery, no pushing and pulling with lower extremities, no power
grasping or use of hand tools or vibratory tools of that nature; only occasional
climbing of ramps or stairs, balancing, stooping, kneeling, crouching, and overhead
reaching; only brief and superficial contact with coworkers, supervisors, and the
public; and allowing use of a cane when ambulating.
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benefits from the fourth quarter of 2010 through the second quarter of 2012, a request
that conceded he was “ready and willing” to work during that period. The ALJ
rejected as unsupported a neurologist’s opinion that Dereschuk should avoid
repetitive work with outstretched arms, and discounted two identical letters from
treating physician Dr. Saccoman, a letter and medical source statement (MSS) from
treating physician Dr. Xiaaj, and a letter from treating orthopedic surgeon Dr. Sierra,
because objective medical evidence did not support or contradicted the doctors’
generic opinions. Based on the RFC finding, the ALJ found that Dereschuk could not
perform his past work as a landscape foreman, fast food worker, roofer, or sales
associate. However, accepting the testimony of the VE, the ALJ found that
Dereschuk was not disabled because he could perform several jobs that exist in
significant numbers in the national economy, such as polisher, inspector, or laminator.
The agency’s Appeals Council denied Dereschuk’s request for review, making
the ALJ’s decision the Commissioner’s final decision. Dereschuk then filed this civil
action, alleging that the ALJ’s decision was not supported by substantial evidence on
the administrative record as a whole because the ALJ erred by (1) not affording
controlling weight to the letters and MSS from Dereschuk’s three treating physicians;
(2) determining that Dereschuk does not have an impairment or combination of
impairments that meets or medically equals Listing 1.02 or Listing 12.04; and (3)
finding that Dereschuk had the RFC to perform a limited range of sedentary work.
In an extensive 67-page opinion, the district court2 affirmed the denial of benefits.
The court carefully examined each letter and the MSS and concluded that the ALJ
“properly weighed the opinions of [Dereschuk’s] treating providers [g]iven the
essentially conclusory statements [in the letters] that [he was] unable to work and
inconsistencies with the record.” Further, the court found substantial evidence
2
The Honorable Tony N. Leung, United States Magistrate Judge for the District
of Minnesota, who was designated to decide the case on the merits with the consent
of the parties pursuant to 28 U.S.C. § 636(c).
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supported the ALJ’s determination that Dereschuk did not meet Listings 1.02 and
12.04, and the ALJ’s RFC determination.
On appeal, Dereschuk argues that the ALJ’s decision was not supported by
substantial evidence on the administrative record as a whole because the ALJ
committed the three errors he argued to the district court.3 “We review de novo the
district court’s decision affirming the ALJ’s denial of benefits.” Igo v. Colvin, 839
F.3d 724, 728 (8th Cir. 2016). After carefully reviewing the administrative record,
we conclude that substantial evidence supports the ALJ’s decision and affirm for the
reasons stated in the district court’s thorough opinion. See 8th Cir. Rule 47B.
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3
Dereschuk argues for the first time in his reply brief that the VE erred in
testifying that Dereschuk has the RFC to perform two types of sedentary work the VE
identified because the Dictionary of Occupational Titles rates those jobs as light
work. Absent some reason for failing to raise an issue in the opening brief, “we will
not consider an issue first raised in a reply brief.” United States v. Darden, 70 F.3d
1507, 1549 n.18 (8th Cir. 1995), cert. denied, 517 U.S. 1149 (1996).
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