holding that the ALJ’s finding that the treating doctor’s opinion “appears to be based on the claimant's subjective assertions of pain” was a “potential bas[i]s to not give controlling weight to [the] opinion”
How later courts described this case
- holding that the ALJ’s finding that the treating doctor’s opinion “appears to be based on the claimant's subjective assertions of pain” was a “potential bas[i]s to not give controlling weight to [the] opinion”
- finding that Grid Rule 201.14 appeared to control and required a finding that the plaintiff was disabled but remanding for the Social Security Commissioner to make that determination
- finding that the failure by a treating physician to provide an explanation for opinions reflected in a checklist form is grounds for discounting the weight to afford such an opinion
- finding error when the ALJ offered no basis to give an opinion non-substantial weight; “For example, the ALJ did not find the opinion inconsistent with the record or another [of the physician’s own] opinion[s].”
Written by the judges who cited it.
The opinion
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-2230
___________________________
Kathleen J. Papesh
lllllllllllllllllllllPlaintiff - Appellant
v.
Carolyn W. Colvin, Acting Commissioner of Social Security
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: February 10, 2015
Filed: May 27, 2015
____________
Before BYE, BEAM, and BENTON, Circuit Judges.
____________
BENTON, Circuit Judge.
Kathleen J. Papesh appeals the denial of her application for disability benefits
and supplemental security income. Having jurisdiction under 28 U.S.C. § 1291, this
court reverses and remands.
I.
A.
Dr. Richard E. Cash treated Papesh beginning April 3, 2009. She lived with her
husband and adult daughter. She had a GED and worked as a bakery helper and cake
decorator (previously as a hostess and server). She reported long-term, low-back pain,
which radiated to her hips and legs. She said the pain “is worse with working”
because the bakery has concrete floors. Dr. Cash observed “tenderness throughout the
lumbar spine to palpation, as well as pain with some spasm in the low back.” He
ordered a MRI.
Papesh turned 50 in late April. She saw Dr. Cash on May 14. She said “the leg
achiness and radiating pain on both sides is getting worse and worse, to the point
where she is having a hard time working beyond 8 hours when she is asked to in the
bakery.” She reported she “gets her best relief when she lays on her back with a
pillow under her knees and then laying on an ice pack.” The straight-leg raise test “in
the seated position reproduces her back pain and some radiation into the buttock and
thigh but nothing below the knee at all.” He observed “a slight antalgic gait, but
[Papesh] maneuvers on and off of the exam table without any difficulty at all.” The
MRI, he noted, “shows multiple level changes with some disc desiccation, some
chronic-appearing changes, mild disc bulging that possibly minimally impinge some
nerves or nerve roots, but no severe indentations.” He assessed, “Chronic low back
pain with multiple level changes; radiation down the legs, does not appear to be true
radiculopathy to me, but could be coming from the back.” He referred her to an
interventional pain clinic and to Dr. Jeffrey S. Gerdes, a neurosurgeon.
On May 29, Papesh called Dr. Cash. She reported increasing back pain, higher
demands at work during a busy season, and her supervisor’s concern about an accident
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or further injury. Dr. Cash took her off work for three weeks “to get over busy time
of year.”
Dr. Gerdes evaluated Papesh four days later. He noted, “She is on high-dose
narcotics for [her] condition.” He noted the MRI “shows mild spondolytic [sic]
changes with mild narrowing at L4-5, otherwise no evidence of impingement.” Dr.
Gerdes did “not see surgical intervention as an option for her.”
Papesh visited Dr. Cash on June 24. After three weeks off work, Papesh
reported “this is the best she has felt in years. She states that the horrible leg pain is
now gone. . . . She still gets pain and states that she breaks out the ice pack about four
times per day, but now she can sit down, lie down with the ice pack as needed and
things are extremely manageable.”
On September 17, Dr. Cash noted, “She has been off work because of the pain
and also to help care for her mother who has severe dementia. Even if she was not
caring for her mom, her back pain and generalized pain are precluding her from
work.” Dr. Cash observed “quite exquisite tenderness over the lower spine and
paralumbar musculature to palpation.” He assessed Papesh for depression and
anxiety. One month later, she visited Dr. Cash “because of worsened depression and
anxiety” after her mom’s death.
Papesh applied for disability on December 11 (and for supplemental security
income on February 2, 2010). She alleged she was disabled, beginning June 1, 2009,
due to degenerative disc disease, fibromyalgia, depression, anxiety, and other
impairments.
Dr. Cash completed a Lumbar Spine Residual Functional Capacity (RFC)
Questionnaire on January 6, 2010. Under Diagnoses, he included chronic low-back
pain and degenerative disc disease. He wrote, “Pain is up to 10/10 at times worsened
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by lifting, twisting, standing on concrete or other hard surfaces or prolonged sitting.”
Dr. Cash placed an “X” by abnormal gait and muscle spasm. He opined that Papesh
can walk a half-block without rest; continuously sit for 10 minutes and continuously
stand for five minutes; sit and stand/walk for less than two hours total in an eight-hour
working day; and, occasionally lift and carry less than 10 pounds and never lift or
carry 10 or more pounds. He circled “Yes” for “Does your patient have significant
limitations in doing repetitive reaching, handling or fingering?”
After Dr. Cash left the medical group, Papesh’s physician became Dr. Steven
M. Danielson. On January 13, 2010, he noted:
She has chronic low back pain, fibromyalgia, and additionally has
depression with anxiety features and some situational stressors. Her use
of narcotics has been stable and consistent. She overall is satisfied with
symptom control.
Papesh completed a function report on February 6. She said she iced her back
throughout the day, did household chores for 10-15 minutes at a time (without
bending, lifting, or reaching), and sometimes needed help tying her shoes.
Papesh saw Dr. Danielson again on February 17. He noted, “Overall she is
satisfied with symptom control. . . . There remains some mild tenderness over the
lower spine and paralumbar muscles.” Under assessments, he listed chronic low-back
pain and fibromyalgia.
Dr. Dan Larson, a state-agency physician, completed a physical RFC
assessment in checklist format on March 19. He checked that Papesh could
occasionally lift 20 pounds, frequently lift 10 pounds, stand and/or walk six hours
total in an eight-hour workday, and sit six hours total in an eight-hour workday. He
checked that she could occasionally stoop and crouch and frequently balance, kneel,
and crawl. He did not check any limitations on her reaching, handling, and fingering.
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When instructed to “Cite the specific facts upon which your conclusions are based,”
Dr. Larson summarized Dr. Gerdes’s letter and Dr. Danielson’s February 17 treatment
notes.
Papesh completed a second function report on June 3. She said her household
activities were now limited to one or two minutes at a time. She said she rarely went
out of the house. She wrote, “I just can’t stay on my [feet] for more than a few
minutes at a time. The more I’m on my feet, the more I hurt.” Papesh’s daughter
completed a third-party function report corroborating Papesh’s description of her daily
functioning.
Papesh saw Dr. Danielson on July 14. He noted, “Overall, she feels she’s been
fairly stable. . . . Overall her back pain control seems reasonable. . . . She appears in
no distress.” On November 3, he noted, “She has chronic pain . . . . Back and leg
symptoms worsened with prolonged standing. She does appear mildly distressed.”
On January 18, 2011, he noted that Papesh had a “normal gait” and was “able to stand
without difficulty.” On March 4, he noted: “The pain is currently 3/10 in intensity
and has been worsening since the last visit. . . . The pain radiates into right upper leg,
left upper leg, right lower leg, and left lower leg. The patient reports her current level
of activities are significantly impaired.”
On March 10, Dr. Roger P. Handrich, a psychiatrist, diagnosed major
depression and anxiety. Later that month, Dr. Mark C. Bordewick, a psychologist,
diagnosed major depression.
In a June 24 letter, Dr. Danielson opined:
Papesh has impairments which severely limit her ability to function in a
competitive workplace environment. She has had longstanding low-back
pain with symptoms radiating into both legs. This is felt to be
nonsurgical. She does require frequent change of positions. The
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symptoms are relieved with lying down. With utilization of pain
medications and timed rest she feels her symptoms are adequately
controlled. Due to her limitations in time that she can be standing or
walking, and need to be off her feet for symptom relief, she would have
difficulty functioning in a typical workplace environment. Even with
this, she will have some episodic flares of her pain and would be unlikely
to maintain a full-time work schedule. Her pain may flare somewhat
unpredictably necessitating unscheduled breaks.
B.
At a December 15 hearing, Papesh testified, as did Dr. Joseph Horozaniecki, a
neutral medical expert, and William Rutenbeck, a neutral vocational expert. The
record included the reports summarized above.
Papesh testified about her pain, saying she “never [has] a day without pain,”
despite the “strong pain medication.” She also described her daily functioning. Asked
“how far could you walk before you would have to stop,” Papesh replied, “Sometimes
around the block, sometimes only to the end of the block.” Asked if she helps with
any chores, Papesh said her husband and daughter “may bring a basket of laundry for
me to fold.” She testified her husband and daughter “[m]ostly” do the cooking, and
“they’ve been taking on a lot more of the household responsibilities” in “the past 15
months.” She said she can stand for “five or 10 minutes” but “[t]hen it hurts and I
have to lay down on ice.” She testified her daughter “was taking care of my elderly
mother.”
Dr. Horozaniecki testified that Papesh’s physical impairments included chronic
low-back pain and fibromyalgia. He said the back pain was “due to lumbar
degenerative disc disease, which is multi-level and facet arthrosis” and cited three
sources in the medical record, including the MRI. For the fibromyalgia, Dr.
Horozaniecki cited two sources, including a note from Dr. Cash, but acknowledged
he “did not find any . . . positive physical examination reports to corroborate this
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diagnosis.” Asked “what kinds of limitations would you impose with the record that
you’ve seen,” Dr. Horozaniecki testified he “would impose a sedentary level of
exertion” with “only occasional bending, crouching or stooping.”
Rutenbeck testified that Papesh’s previous jobs were semi-skilled or skilled.
He said those skills were not transferrable “to a routine, repetitive” position. Based
on a hypothetical person of Papesh’s age, education, and work experience who was
limited to light, not sedentary, work, Rutenbeck testified she could do unskilled, light
jobs, like small-parts assembler (with 5,600 positions in Minnesota) and hand
packaging (with 6,800 positions in Minnesota).
C.
In a written decision, the ALJ concluded Papesh has the RFC “to perform light
work . . . requiring lifting twenty pounds occasionally and ten pounds frequent[ly],
and standing/walking six hours in an eight-hour day, with no high concentration of
airway irritants, no climbing of ladders, no work at heights or around hazardous
machinery, and no more than occasional bending, crouching, and stooping. [She] is
limited to routine, repetitive instructions and tasks, brief and infrequent contact with
coworkers, and routine stressors.” See 20 C.F.R. § 404.1567(b). Based on
Rutenbeck’s testimony, the ALJ concluded Papesh was not disabled because she was
“capable of making a successful adjustment to other work that exists in significant
numbers in the national economy.”
The ALJ gave “great weight” to the conclusions of Dr. Larson, an “expert[] in
the evaluation of the medical issues in disability claims.” The ALJ did not give “great
weight” to the opinions of Dr. Cash (because “inconsistent with the overall evidence
of record” and two other reasons); Dr. Danielson (“inconsistent with [his] own
treatment notes” and appears “based on the claimant’s subjective assertions of pain”);
-7-
and Dr. Horozaniecki’s (lacking “any significant objective medical evidence”). The
ALJ found Papesh’s daughter “sincere.”
After the Appeals Council denied review, Papesh sought judicial review under
42 U.S.C. § 405(g). A magistrate judge, sitting with the parties’ consent, affirmed the
denial of benefits. Papesh appeals.
II.
This court reviews de novo the decision affirming the denial of benefits. See
Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011). This court affirms “if the ALJ
made no legal error and the ALJ’s decision is supported by substantial evidence on the
record as a whole.” Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). It “is
less than a preponderance, but enough that a reasonable mind might accept as
adequate to support a conclusion.” Phillips v. Astrue, 671 F.3d 699, 702 (8th Cir.
2012). This court “will disturb the ALJ’s decision only if it falls outside the available
zone of choice.” Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006). “An ALJ’s
decision is not outside the zone of choice simply because we might have reached a
different conclusion had we been the initial finder of fact.” Bradley v. Astrue, 528
F.3d 1113, 1115 (8th Cir. 2008).
A five-step process determines whether a claimant is disabled. Lott v. Colvin,
772 F.3d 546, 548 (8th Cir. 2014); 20 C.F.R. §§ 404.1520(a)(4), 416.920. “Step four
requires the ALJ to consider whether the claimant retains the RFC to perform her past
relevant work.” Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). “The ALJ
must determine the claimant’s RFC based on all relevant evidence, including medical
records, observations of treating physicians and others, and claimant’s own
descriptions of [her] limitations.” Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir.
2003). “It is the ALJ’s function to resolve conflicts among the opinions of various
treating and examining physicians.” Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th
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Cir. 2012) (brackets omitted). Papesh bears the burden of proving her RFC. See
Baldwin, 349 F.3d at 556.
Even if Papesh cannot perform past relevant work, she is not entitled to benefits
if, at step five, the Commissioner shows she has the physical RFC “to perform a
significant number of other jobs in the national economy that are consistent with her
impairments and vocational factors such as age, education, and work experience.” See
Phillips, 671 F.3d at 702.
Physically, Papesh argues that the substantial evidence on the record as a whole
supports a finding that she can perform sedentary work only. See 20 C.F.R. §
404.1567(a) (“Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain amount
of walking and standing is often necessary in carrying out job duties.”).
A.
This court begins with the opinions of Papesh’s two treating physicians, Drs.
Cash and Danielson. They “are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations.” See id. § 404.1527(c)(2). The
ALJ must give “controlling weight” to a treating physician’s opinion if it “is
well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence.” Wagner v. Astrue, 499
F.3d 842, 848-49 (8th Cir. 2007) (internal quotation marks and emphases omitted).
See S.S.R. 96-2p, Policy Interpretation Ruling, Titles II and XVI: Giving
Controlling Weight to Treating Source Medical Opinions, 1996 WL 374188 (July
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2, 1996) (“Not inconsistent . . . is a term used to indicate that a well-supported treating
source medical opinion need not be supported directly by all of the other evidence
(i.e., it does not have to be consistent with all the other evidence) as long as there is
no other substantial evidence in the case record that contradicts or conflicts with the
opinion.”).
“Even if the [treating physician’s] opinion is not entitled to controlling weight,
it should not ordinarily be disregarded and is entitled to substantial weight.” Samons
v. Astrue, 497 F.3d 813, 818 (8th Cir. 2007). It may have “limited weight if it
provides conclusory statements only, or is inconsistent with the record.” Id. (citations
omitted). The ALJ “may discount or even disregard the opinion . . . where other
medical assessments are supported by better or more thorough medical evidence, or
where a treating physician renders inconsistent opinions that undermine the credibility
of such opinions.” Miller v. Colvin, 2015 WL 1881189, at *4, ___ F. 3d ___, ___ (8th
Cir. Apr. 27, 2015).
After treating Papesh for 18 months, Dr. Danielson opined she “has
impairments which severely limit her ability to function in a competitive workplace
environment.” The ALJ said it “does not give this opinion great weight because it is
inconsistent with Dr. Danielson’s own treatment notes” and “appears to be based on
the claimant’s subjective assertions of pain.”
The ALJ’s reasons are potential bases to not give controlling weight to Dr.
Danielson’s opinion. See Wagner, 499 F.3d at 848-49. This court assumes, without
deciding, that Dr. Danielson’s opinion warrants non-controlling weight. But the ALJ
offered no basis to give the opinion non-substantial weight. For example, the ALJ did
not find the opinion inconsistent with the record, Samons, 497 F.3d at 818, or another
Dr. Danielson opinion, Miller, 2015 WL 1881189, at *4, ___ F. 3d at ___.
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After treating Papesh for nine months, Dr. Cash opined that Papesh is limited
to sedentary work. The ALJ said it “does not give [Dr. Cash’s opinion] great weight
because it is [1] inconsistent with the overall evidence of record, including the medical
opinion of [Dr. Larson], and appears to be [2] based primarily on the claimant’s
subjective assertions of disability.” The ALJ added that there was [3] “no objective
medical evidence to support” Dr. Cash’s limitation that Papesh not engage in any
repetitive handling.
The second and third reasons are potential bases to not give controlling weight
to Dr. Cash’s opinion. See Wagner, 499 F.3d at 848-49. This court addresses the first
reason because it is a basis to give the opinion non-substantial weight. See Samons,
497 F.3d at 818. Dr. Cash’s opinion contradicts one opinion that is not entitled to
substantial weight, Dr. Larson’s. See Part II(B). But Dr. Cash’s opinion is consistent
with all other evidence—the opinions of Drs. Danielson and Horozaniecki as well as
Papesh’s descriptions of her limitations. This court concludes Dr. Cash’s opinion is
not inconsistent with the overall evidence of record. See S.S.R. 96-2p.
The opinions of Drs. Cash and Danielson are entitled to substantial weight.
B.
This court next considers the opinions of the two nonexamining physicians,
Drs. Horozaniecki and Larson. “[T]he opinions of nonexamining medical sources are
generally given less weight than those of examining sources.” Wildman v. Astrue,
596 F.3d 959, 967 (8th Cir. 2010) (ellipsis omitted). “That is especially true when,
like here, the nonexamining expert’s opinion is given in checklist format.” McCoy
v. Astrue, 648 F.3d 605, 615 (8th Cir. 2011) (noting that “checklist format, generality,
and incompleteness of the assessments limit the assessments’ evidentiary value”
(brackets omitted)). “[B]ecause nonexamining sources have no examining or treating
relationship . . ., the weight we will give their opinions will depend on the degree to
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which they provide supporting explanations for their opinions.” 20 C.F.R. §
404.1527(c)(3).
Dr. Horozaniecki testified that Papesh’s physical impairments included chronic
low-back pain and fibromyalgia. He testified the back pain was “due to lumbar
degenerative disc disease, which is multi-level and facet arthrosis” and made three
citations to the medical record, including the MRI. As for the fibromyalgia, Dr.
Horozaniecki cited two sources, including a note from Dr. Cash, but acknowledged
he “did not find any . . . positive physical examination reports to corroborate this
diagnosis.” Asked “what kinds of limitations would you impose with the record that
you’ve seen,” Dr. Horozaniecki testified he “would impose a sedentary level of
exertion” with “only occasional bending, crouching or stooping.”
The ALJ said it “does not give his opinion great weight” because of “the
absence of any significant objective medical evidence.”1 The ALJ misconstrues Dr.
Horozaniecki’s testimony. The three citations to the medical record, including the
MRI, sufficiently support his testimony that Papesh had chronic low-back pain. While
acknowledging he could not corroborate a fibromyalgia diagnosis with any “positive
physical examination reports,” he cited Dr. Cash’s note. This court cannot determine
whether Dr. Horozaniecki, when making his sedentary-exertion opinion, accounted
for the lack of corroboration. But it does not matter because the ALJ did not
completely reject Dr. Horozaniecki’s opinion. See Wagner, 499 F.3d at 848 (“The
ALJ may reject the conclusions of any medical expert . . . if they are inconsistent with
the record as a whole.”). Instead, the ALJ did “not give his opinion great
1
The ALJ points to treatment notes indicating Papesh moved on and off an
exam table without difficulty and had mild tenderness and no radiculopathy.
However, the treatment notes also indicated Papesh had antalgic gait, limited range
of motion, degenerative disc disease, and consistent tenderness over her lumbar area.
While her doctors recommended exercise and physical therapy, they also referred her
to a neurosurgeon and an interventional pain clinic.
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weight”—the same weight the ALJ gave the opinions of Drs. Cash and Danielson.
Thus, Dr. Horozaniecki’s opinion is evidence on the record, although this court
assumes, without deciding, it is not entitled to substantial weight. But cf. 20 C.F.R.
§ 404.1527(c)(4) (“Generally, the more consistent an opinion is with the record as a
whole, the more weight we will give to that opinion.”).
In contrast, the ALJ gave “great weight” to Dr. Larson’s opinion that Papesh
retained the physical capacity to perform light work. To the extent the ALJ gave Dr.
Larson’s opinion substantial weight, the ALJ erred. First, the opinion is in checklist
format. See McCoy, 648 F.3d at 615. Second, this court is unimpressed by “the
degree to which [Dr. Larson] provide[d] supporting explanations for [his] opinion[].”
See 20 C.F.R. § 404.1527(c)(3). Instructed to “Cite the specific facts upon which
your conclusions are based,” Dr. Larson summarized Papesh’s medical history in 19
lines of text. His summary references just two post-June 1, 2009, sources—Dr.
Gerdes’s letter and one day of Dr. Danielson’s treatment notes. Dr. Larson makes no
reference to Dr. Cash’s opinion or treatment notes. Nor does Dr. Larson reconcile the
limitations Papesh described in her first function report.2
C.
The ALJ discredited Papesh’s subjective allegations of pain. “We defer to the
ALJ’s evaluation of [Papesh’s] credibility provided that this determination is
supported by good reasons and substantial evidence.” See Turpin v. Colvin, 750 F.3d
989, 993 (8th Cir. 2014). “We do not consider impairments controllable by treatment
2
The government argues that Dr. Horozaniecki’s testimony supports the ALJ’s
RFC determination because both Dr. Horozaniecki and Dr. Larson recommended
limitations on airway irritants, heights, and bending. Those consistencies are trivial
in this dispute, and the doctors reached opposite conclusions on the issue—whether
Papesh has the RFC to perform light work (Dr. Larson) or sedentary work (Dr.
Horozaniecki).
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or medication to be disabling.” Id. In July 2010, Dr. Danielson reported, “Overall her
back pain control seems reasonable.”
The ALJ also discredited Papesh because “[t]reatment notes from September
2009 indicate [Papesh] was off work due to her pain but also to help care for her
mother.” The ALJ misread Dr. Cash’s September 17, 2009, treatment note: “Even if
she was not caring for her mom, her back pain and generalized pain are precluding her
from work.” The ALJ did not draw inconsistencies between Papesh’s “care for her
mother” and Papesh’s description of her own limitations. The record never defines
what kind or how much care Papesh provided, and Papesh testified her daughter “was
taking care of my elderly mother.”
The ALJ did not challenge Papesh’s testimony about her daily functioning.
That testimony is evidence warranting some weight, and it is consistent with the
opinions of Drs. Cash, Danielson, and Horozaniecki. Asked “how far could you walk
before you would have to stop,” Papesh testified, “Sometimes around the block,
sometimes only to the end of the block.” When asked if she helps with any chores,
Papesh testified her husband and daughter “may bring a basket of laundry for me to
fold.” She testified her husband and daughter “[m]ostly” do the cooking, and “they’ve
been taking on a lot more of the household responsibilities” in “the past 15 months.”
She said she can stand for “five or 10 minutes” but “[t]hen it hurts and I have to lay
down on ice.” In her first function report, Papesh said she iced frequently and
sometimes needed help tying her shoes. In her second function report, Papesh said her
household activities were limited to one or two minutes, and she rarely went out of the
house. She wrote, “I just can’t stay on my [feet] for more than a few minutes at a
time. The more I’m on my feet, the more I hurt.” Papesh’s daughter, whom the ALJ
found “sincere,” corroborated these reports.
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D.
Dr. Larson’s checklist opinion stands alone, unsupported by any substantial
evidence. Even if his opinion warranted substantial weight, it is directly contradicted
by another opinion entitled to substantial weight, Dr. Cash’s. Another opinion entitled
to substantial weight, Dr. Danielson’s, is consistent with Dr. Cash’s and is inconsistent
with Dr. Larson’s. The remaining evidence—Dr. Horozaniecki’s opinion and
Papesh’s testimony—contradicts Dr. Larson’s opinion and is consistent with the
opinions of Drs. Cash and Danielson.
This case is like Leckenby v. Astrue, 487 F.3d 626 (8th Cir. 2007). There, this
court remanded the denial of benefits because the record as a whole contained
“substantially similar RFC opinions from three independent treating physicians . . .
that are consistent with the treatment notes” and the claimant’s daily activities.
Leckenby, 487 F.3d at 635. The record here contains two substantially similar RFC
opinions from a treating physician and neutral medical expert plus a consistent
opinion from a second treating physician—all consistent with the claimant’s
descriptions of her daily functioning.
The ALJ’s determination that Papesh can perform light work falls outside the
available zone of choice. The substantial evidence on the record as a whole supports
a finding that Papesh is capable of sedentary work only.
III.
Papesh asks this court to order the Commissioner to pay benefits. “We may
enter an immediate finding of disability only if the record ‘overwhelmingly supports’
such a finding.” Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000) (noting this
court’s ordinary practice is to remand “out of our abundant deference to the ALJ”).
See Fowler v. Bowen, 866 F.2d 249, 253 (8th Cir. 1989) (remanding with directions
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to enter judgment awarding benefits because vocational expert testified there were no
jobs claimant could perform).
Papesh cites Grid Rule 201.14 of Appendix 2 to Subpart P of Part 404, the
Medical-Vocational Guidelines. It directs a finding of “Disabled” when: (1) the
maximum sustained work capability is limited to sedentary work, (2) the claimant is
closely approaching advanced age, (3) the claimant is a high school graduate or more
and her education does not provide for direct entry into skilled work, and (4) the
claimant’s work experience involved skilled or semi-skilled work and those skills are
not transferable. The ALJ found that Papesh, aged 50 at her alleged onset date, was
closely approaching advanced age. See 20 C.F.R. § 404.1563(d). The ALJ found that
Papesh has “at least a high school education”; while the ALJ did not make a finding
about whether her education provided for direct entry into skilled work, Rutenbeck
testified she would be limited to unskilled work. The ALJ found that Papesh’s past
work involved skilled or semi-skilled work; while the ALJ did not make a finding
about the transferability of her skills, Rutenbeck testified her skills were not
transferable. The Commissioner makes no argument that Grid Rule 201.14 does not
apply, but the ALJ stated that transferability was “not material” in his (now-reversed)
order. Although Grid Rule 201.14 appears to control, this issue is left for remand. Cf.
Stewart v. Sec’y of Health & Human Servs., 957 F.2d 581, 587 (8th Cir. 1992)
(reversing and remanding for entry of judgment awarding benefits when Grid Rule
201.14 applied).3
*******
The judgment is reversed, and the case remanded for proceedings consistent
with this opinion.
______________________________
3
This court need not address the parties’ mental RFC arguments.
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