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Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551
   

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SOCIAL SECURITY - no error regarding later medical reports, ability to work at relevant time

1The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-2586
___________
Katherine M. Davidson, *
*
Appellant, **
Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Michael J. Astrue, *
*
Appellee. *
___________
Submitted: May 18, 2007
Filed: September 6, 2007
___________
Before MURPHY, HANSEN, and COLLOTON, Circuit Judges.
___________
COLLOTON, Circuit Judge.
Katherine Davidson appeals the judgment of the district court1 upholding the
final decision of the Commissioner of Social Security to deny Davidsons application
for disability insurance benefits. We affirm.
-2-
I.
In August 2002, Katherine Davidson was seriously injured after a moving car
pinned her body against a wall. Davidson suffered two fractures in her left leg, and
her injuries required surgery and the insertion of a rod into her leg. During her
rehabilitation, Davidson also tore the anterior cruciate ligament (ACL) in her right
knee. Davidson applied for disability insurance benefits under Title II of the Social
Security Act. 42 U.S.C. 423. The evidence in the administrative record regarding
Davidsons physical condition comes from two principal sources: her medical records
and her testimony at the benefits hearing.
Among the most important medical records are the notes of Davidsons treating
physician, Dr. Robert Sharpe. In October 2002, Dr. Sharpe recorded that Davidson
had begun weight-bearing on her left leg ahead of schedule, and noted that [h]er
therapy seem[ed] to be going well. (A.R. 158). A month later, Dr. Sharpe gave
Davidson permission to move from crutches to a cane for walking. In early 2003,
while noting that Davidson had a slight limp, Dr. Sharpe reported that she had no
significant complaints and denie[d] any knee pain. (Id. at 156). Nevertheless, Dr.
Sharpe concluded that the fractures were not healing quickly enough, and in February
2003, Dr. Sharpe performed another surgery and inserted a larger rod into the left leg.
In May of that year, he noted that Davidson had some soreness in her leg, but overall
has progressed nicely, and was walking without a cane. (Id. at 152). A month later,
Dr. Sharpe reported that Davidson experienced pain, especially after riding in a car
for prolonged periods, and that her mild limp got worse during the day if she had been
walking. But he stated that she had been participating in weight-lifting activities,
bicycling[,] and swimming at home, and has been doing well with that. (Id.). He
instructed her to continue these activities and to walk for exercise. In September, Dr.
Sharpe noted persistent soreness in the left knee and a very mild limp, and
recommended an aggressive strengthening program. (Id. at 216). In November
-3-
2004, Dr. Sharpe noted intermittent pain and stiffness in the knee, especially after
prolonged sitting.
In a hearing before an Administrative Law Judge (ALJ), Davidson testified
that she regularly felt pain in her left knee with an intensity of six or seven on a scale
of ten, and that her right knee was equally painful because of her torn ACL. She
stated that she could sit for only fifteen or twenty minutes at a time, and that she
usually sat with her leg elevated to waist level, or laid down with her leg elevated.
Among her other activities, Davidson testified that she regularly attended her
daughters basketball games. She stated that she could not sit through the games
because of the pain, and that she sat, stood, and walked throughout the games. After
a game, she experienced more pain than usual.
The ALJ used the familiar five-step evaluation process to determine if Davidson
was disabled. See Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004); 20
C.F.R. 416.920(a)(4). At steps one through four, the ALJ found that Davidson was
not performing substantial gainful activity, that her medical impairments were severe,
that her impairments did not meet or equal a listed impairment, and that she could not
perform past relevant work. At issue on this appeal is the ALJs finding at step five
that Davidson was able to adjust to other work, and that she was therefore not
disabled.
To reach this conclusion, the ALJ evaluated Davidsons credibility under the
test established in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984), and found
that Davidson was not fully credible, because her allegations of disability are not
consistent with the medical signs or findings[,] or [with] treating and examining
physician reports. (A.R. 18). According to the ALJ, Davidsons treatment notes
revealed that she had made a slow but satisfactory recovery from serious leg injuries
and regained the capacity for some sedentary work. (Id.). The ALJ noted that
Davidson was relatively active. She participated in a rehabilitation program that
-4-
included walking, swimming, and strengthening, and regularly attended her daughters
basketball games.
Drawing upon this and other evidence in the record, the ALJ assessed
Davidsons residual functional capacity (RFC). On appeal, Davidson contests two
of his findings: first, that Davidson could sit up to six hours per day and could stand
or walk up to two hours per day; second, that Davidson required a sit/stand option at
will, and needed to occasionally elevate her leg one foot or less, but that neither
limitation materially interfered with her job duties. A vocational expert testified that
a person with these restrictions could work as a secretary, bookkeeper, and
receptionist. These jobs exist in significant numbers in the national economy.
Accordingly, the ALJ denied Davidsons application for benefits.
Davidson petitioned the Appeals Council for review, and submitted RFC
assessments from her treating physician, Dr. Sharpe, and an examining physician, Dr.
Paul, as new evidence. At the hearing before the ALJ, the vocational expert had
testified that if Davidson needed to elevate her legs to waist level, she would be
precluded from working. In response to this testimony, the Sharpe and Paul reports
stated that Davidson must elevate her leg to waist level when sitting for prolonged
periods, and that she could sit for no more than two hours per day, and could stand or
walk for no more than one to two hours per day. The Appeals Council considered this
new evidence, but found that it was irrelevant because it did not relate to the period
during which Davidson was eligible for disability insurance benefits. The Appeals
Council then denied review, making the ALJs decision the final decision of the
Commisioner.
The district court upheld the Commissioners decision. We review the district
courts decision de novo, and will affirm if the Commissioners decision is supported
by substantial evidence in the record as a whole. Leckenby v. Astrue, 487 F.3d 626,
632 (8th Cir. 2007). Substantial evidence is less than a preponderance, but enough
2The Appeals Council stated that both reports were from Dr. Sharpe. As noted,
one was from Dr. Sharpe, and one was from Dr. Paul.
-5-
evidence that a reasonable mind would find adequate to support the Commissioners
decision. Id.
II.
To be eligible for disability insurance benefits under Title II, a claimant must
meet the statutes insurance requirements. Long v. Chater, 108 F.3d 185, 187 (8th
Cir. 1997); 42 U.S.C. 416(i)(2)(C), 416(i)(3)(B). When an individual is no longer
insured for Title II disability purposes, we will only consider [her] medical condition
as of the date she was last insured. Long, 108 F.3d at 187. Davidsons insured status
expired on December 31, 2003, so, like the Commissioner, we consider her condition
before that date.
Davidsons central claim is that the RFC assessments of Dr. Sharpe and Dr.
Paul, which she submitted to the Appeals Council after the ALJ denied her claim,
should change the outcome in this case. Those reports are part of the administrative
record on appeal, because the Appeals Council considered them when it decided
whether to review the ALJs decision.2 Cunningham v. Apfel, 222 F.3d 496, 500 (8th
Cir. 2000). Where, as here, the Appeals Council considers new evidence but denies
review, we must determine whether the ALJs decision was supported by substantial
evidence on the record as a whole, including the new evidence. Id.; Riley v. Shalala,
18 F.3d 619, 622 (8th Cir. 1994); Nelson v. Sullivan, 966 F.2d 363, 366 & n.5 (8th
Cir. 1992).
The Appeals Council gave the new medical reports little or no weight. It
concluded that they did not affect the ALJs decision because they did not relate to the
relevant period, having been written in April 2005, some fifteen months after
-6-
Davidsons insured status expired on December 31, 2003. Our court has reached
different conclusions about whether medical evidence concerning a claimants
condition at a later time is probative of her condition during the period of insured
status. Compare Rehder v. Apfel, 205 F.3d 1056, 1061 (8th Cir. 2000) (concluding
that a report by a non-treating psychologist, completed fourteen months after the
relevant time period, is not probative of the claimants condition during the relevant
period) with Basinger v. Heckler, 725 F.2d 1166, 1169 (8th Cir. 1984) (medical
evidence of a claimants condition subsequent to the expiration of the claimants
insured status is relevant evidence because it may bear upon the severity of the
claimants condition before the expiration of his or her insured status). In this case,
even if the reports are deemed relevant to an earlier time, we conclude that they do not
undermine the ALJs conclusion that Davidson could perform sedentary work during
the relevant period.
Dr. Sharpe was a treating physician, and Dr. Paul was a one-time consultant.
They gave similar RFC assessments of Davidson. A treating physicians opinion is
generally entitled to substantial weight, but it does not automatically control, because
the ALJ must evaluate the record as a whole. Charles v. Barnhart, 375 F.3d 777, 783
(8th Cir. 2004). When an ALJ discounts a treating physicians opinion, he should
give good reasons for doing so. Dolph v. Barnhart, 308 F.3d 876, 878 (8th Cir.
2002). The ALJ in this case did not have the benefit of evaluating the Sharpe and Paul
reports, but his decision contains two good reasons for discounting their conclusions.
First, they were not supported by Dr. Sharpes prior treatment notes, and were
inconsistent with the rehabilitation regimen Dr. Sharpe devised for Davidson. Second,
they were undermined by Davidsons testimony about her attendance at her daughters
basketball games.
Dr. Sharpes treatment notes, recorded over the course of two years, contain few
hints of the serious physical limitations that Dr. Sharpe and Dr. Paul would later
attribute to Davidson, after the ALJ denied her disability claim. Dr. Sharpes notes
-7-
nowhere mention that Davidson could sit for only two hours a day and could stand
and walk for one to two hours, nor do they suggest that she spent the rest of the day
bedridden, as such limitations imply. Instead, the notes suggest, as the ALJ found,
that Davidson suffered from no more than moderate knee pain and made slow but
steady progress in her rehabilitation efforts. See Charles, 375 F.3d at 784
(discounting treating physicians assessment where treatment notes reported no severe
restrictions on walking and standing, and the claimants condition was controlled by
medication and some limitation of daily activities). Moreover, the notes approved
Davidson to continue with a rehabilitation program of weight-lifting, bicycling,
swimming, and walking, and recommended an aggressive strengthening program.
(A.R. 216). This vigorous rehabilitation program casts doubt on the Sharpe and Paul
reports, which suggest that Davidson spent most of the day in bed. See Choate v.
Barnhart, 457 F.3d 865, 870 (8th Cir. 2006).
The RFC assessments are also in tension with Davidsons own statements about
her attendance at her daughters basketball games. Davidson testified at the hearing
that she regularly attended these games, which were played back-to-back at 5 p.m. and
7 p.m. Davidson stated that she experienced knee pain at the games, forcing her to sit,
stand, and walk. But her ability to attend these games, which apparently lasted up to
four hours themselves, undermines Dr. Sharpes opinion that she could sit, stand, and
walk for only three hours per day, and Dr. Pauls opinion that she could sit, stand, and
walk for only four hours during an entire day. The record contains good reasons to
reject the RFC assessments, because an appropriate finding of inconsistency with
other evidence alone is sufficient to discount a treating physicians RFC. Goff v.
Barnhart, 421 F.3d 785, 790-791 (8th Cir. 2005). Thus, the new evidence did not
undermine the ALJs decision, which was supported by substantial evidence on the
record as a whole.
For similar reasons, substantial evidence supported the ALJs finding that some
of Davidsons claims about her own pain and limitations were not credible. The ALJ
-8-
gave some weight to Davidsons testimony, as evidenced by his findings that she
could sit for only six hours per day and stand for two, that she required a sit/stand
option at will, and that she needed to elevate her leg up to one foot off the ground.
But he rejected Davidsons testimony that she needed to elevate her legs to waist
level. As the ALJ noted, this restriction is unsupported by Davidsons treatment
notes, and it is called into doubt by her active rehabilitation program, which included
weightlifting, biking, swimming, and walking. The ALJ permissibly rejected
Davidsons complaint because it was inconsistent with substantial evidence in the
record. See Polaski, 739 F.2d at 1322.
* * *
For these reasons, the judgment of the district court is affirmed.
______________________________
 

 
 
 

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