1

Honorable Henry L. Jones, Junior, United States Magistrate Judge for the

Eastern District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-1863

___________

Deborah Robson, * 

* 

Appellant, * 

* Appeal from the United States

v. * District Court for the 

* Eastern District of Arkansas.

Michael J. Astrue, Social Security * 

Administration, Commissioner, * 

* 

Appellee. *

___________

Submitted: January 17, 2008

Filed: May 21, 2008

___________

Before WOLLMAN, BRIGHT, and SMITH, Circuit Judges.

___________

SMITH, Circuit Judge.

Deborah Robson applied for disability benefits under Title II of the Social

Security Act, alleging disability due to post polio syndrome. After an evidentiary

hearing, the administrative law judge (ALJ) denied her application, finding that

Robson was not disabled because she could perform several jobs within the economy

in her current condition. After the Appeals Council denied her request for review,

Robson sought judicial review of the Commissioner's decision. The district court1
-2-

affirmed the denial of benefits, concluding that the ALJ's decision was supported by

substantial evidence on the record as a whole. Robson appeals, arguing that the ALJ

improperly disregarded the opinion of Robson's treating physician regarding her

functional limitations and that the ALJ's hypothetical to the vocational expert (VE) did

not accurately describe Robson's work-related abilities. We affirm.

I. Background

Deborah Robson applied for disability insurance benefits on August 25, 2003,

when she was 55 years old, alleging disability due to post polio syndrome and a

cervical spine diskectomy and fusion in 1990. She alleged that she became disabled

on December 1, 1988. Robson has a high school education and completed a medical

secretarial course in 1965. In the past she has worked as a medical transcriptionist,

receptionist, and an office manager. 

Robson was employed by her treating physician, Dr. James Robinette, but she

testified that she left this position in 1988 because the job required too much walking.

She attempted to work at home as a medical transcriptionist, but this caused neck

problems. Robson received no treatment for post polio syndrome because no such

treatment was then available.

A hearing on her claim was held on April 7, 2005, and at this hearing the ALJ

heard testimony from a VE, Beth Clem. To assist in determining whether Robson was

disabled, the ALJ asked the following hypothetical question of the VE:

Please assume an individual 45 years of age, with a high

school diploma and successful completion of a medical

secretary course at a business and we'll assume no past

relevant work. And assume a sedentary exertional residual

functional capacity as that term is normally defined. That is

able to sit for six hours out of an eight hour day, stand and

walk two hours out of an eight hour day, lift and carry 10
-3-

pounds occasionally. Further assume the usual seizure

precautions, that is unable to work at unprotected heights,

around moving machinery or operate automotive

equipment. Are there any jobs that exist in significant

numbers that such an individual could perform?

In response to this question, the VE found that such an individual could perform

secretarial work, and that there are approximately 32,000 such positions in Arkansas

and approximately 3.9 million positions available in the national economy.

The ALJ evaluated Robson's claims according to the five-step sequential

analysis prescribed by the social security regulations. Among other things, the ALJ

found that: (1) Robson has not engaged in substantial gainful activity since the onset

of her disability on December 1, 1988; (2) while Robson has been treated for cervical

spondylosis and post polio syndrome, she does not have an impairment or

combination of impairments listed in, or medically equal to one listed in Appendix 1,

Subpart P, Regulations No. 4; (3) Robson's subjective allegations are not borne out by

the overall record nor found to be fully credible; (4) Robson has a residual functional

capacity (RFC) to lift or carry no more than 10 pounds occasionally, sit 6 hours in an

8 hour day, stand/walk no more than 2 hours total in an 8 hour day, and that she was

restricted from operating motor vehicles, working from unprotected heights, and

working around moving machinery; (5) Robson could perform sedentary jobs such as

a secretary or a data entry clerk; and (6) there are a significant number of these jobs

in the regional economy. 

Based on these findings, the ALJ determined that Robson was not disabled, as

defined in the Social Security Act, at any time through the date of his decision. The

Appeals Council denied Robson's request for review, and she filed an appeal with the

United States District Court for the Eastern District of Arkansas. The district court

found that the Commissioner's decision was supported by substantial evidence on the

record as a whole and affirmed the denial of benefits.
-4-

II. Discussion

Robson argues that substantial evidence on the record as a whole does not

support the ALJ's determination that she is not disabled. More specifically, she argues

that the VE's testimony did not constitute substantial evidence because the

hypothetical presented to the VE was defective. 

"We review de novo the district court's affirmance of the Commissioner of

Social Security's denial of social security benefits." Wagner v. Astrue, 499 F.3d 842,

848 (8th Cir. 2007) (citing Bowman v. Barnhart, 310 F.3d 1080, 1083 (8th Cir.

2002)). In reviewing the Commissioner's decision, we must determine whether there

is substantial evidence on the record as a whole, which is a determination that requires

an examination of the record for both the evidence supporting the Commissioner's

decision and evidence that detracts from that decision. Id. (citing Bowman, 310 F.3d

at 1083). In conducting this inquiry, however, "[w]e are not permitted to reverse

because substantial evidence also exists that would support a contrary outcome or

because we would have decided the case differently." Sultan v. Barnhart, 368 F.3d

857, 863 (8th Cir. 2004).

A disability is defined as the "inability to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment which

can be expected to result in death or which has lasted or can be expected to last for a

continuous period of not less than 12 months." 42 U.S.C. § 423(d). To assess whether

a claimant is disabled, the ALJ follows a five-step sequential evaluation process and

considers: (1) the claimant's work activity, if any; (2) the medical severity of the

impairment; (3) whether the medical severity of the impairment equals one of the

listings in Appendix 1 of Subpart P; (4) the claimant's residual functional capacity

(RFC) and past relevant work; and (5) whether the claimant can perform other jobs

in the economy given the claimant's RFC, age, education, and work experience. 20

C.F.R. § 404.1520(a)(4). 
-5-

Here, the ALJ found that Robson was not disabled because she was able to

perform other work. The ALJ based his determination largely on the testimony of the

VE. Ordinarily, the Commissioner can rely on the testimony of a VE to satisfy its

burden of showing that the claimant can perform other work. Porch v. Chater, 115

F.3d 567, 571 (8th Cir. 1997); see also Guilliams v. Barnhart, 393 F.3d 798, 804 (8th

Cir. 2005) (stating that "[t]he Commissioner may rely on a vocational expert's

response to a properly formulated hypothetical question to show that jobs that a

person with the claimant's RFC can perform exist in significant numbers"). We note,

however, that such "[t]estimony from a vocational expert is substantial evidence only

when the testimony is based on a correctly phrased hypothetical question that captures

the concrete consequences of a claimant's deficiencies." Cox v. Astrue, 495 F.3d 614,

620 (8th Cir. 2007). 

At the hearing, the ALJ posed a hypothetical question to the VE, asking

whether there is work in the economy for a forty-five year old person who has

completed high school and a medical secretary course and who is limited to sedentary

work with usual seizure precautions. Robson contends that the hypothetical should

have made mention of Robson's obesity and discussed Dr. Robinette's conclusions

regarding Robson's current condition.

Upon careful review, we conclude that the ALJ did not err in excluding

Robson's obesity from the hypothetical posed to the VE. See Thompson v. Astrue, 226

F. App'x. 617, 620 (8th Cir. 2007) (holding that the ALJ did not err in failing to

submit a hypothetical question to the vocational expert where the claimant failed to

claim obesity as a disabling condition). Here, Robson claimed that her obesity

exacerbated her existing medical infirmities, but she does not explain how including

her obesity would change the question to the VE. The hypothetical adequately

described all of Robson's physical limitations.
-6-

We also conclude that the ALJ did not err by not including Dr. Robinette's

findings regarding Robson's condition before 1992. The hypothetical question

assumed that Robson is able to perform sedentary work, but there is no mention of her

complications from post polio syndrome. The only additional information Dr.

Robinette's opinion adds to the discussion of Robson's condition is that the doctor

believes that Robson (1) suffered from post polio syndrome and was disabled by the

condition as early as the late 80s or early 90s; (2) was postoperative anterior cervical

disketecomy with bone graft; and (3) suffered chronic neck and hip pain. 

Dr. Robinette's conclusion that Robson was disabled receives no deference

because a finding of disability is one reserved for the Commissioner. House v. Astrue,

500 F.3d 741, 744 (8th Cir. 2007). The ALJ is free to take Dr. Robinette's opinion on

Robson's ability to work into consideration when assessing her social security claim,

but such an opinion does not describe a physical limitation based upon Robson's

physical ailments that the ALJ must include in its hypothetical to the VE.

The hypothetical was not defective with regard to Robson's post polio

syndrome. As with her obesity, Robson has not identified any "concrete

consequences" missing from the hypothetical because the ALJ failed to mention

Robson's post polio syndrome. Furthermore, Dr. Robinette's findings regarding

Robson's post polio syndrome are not entitled to receive substantial deference, as

these medical findings are not supported by any objective diagnostic testing. See id.

at 744–45 ("A treating physician's opinion is given controlling weight 'if it is

well-supported by medically acceptable clinical and laboratory diagnostic techniques

and is not inconsistent with the other substantial evidence.'"). We have recognized the

probative value of retrospective opinions but have not gone so far as to require that

the Commissioner give such opinions controlling weight when they are not supported

by diagnostic testing. See e.g. Grebenick v. Chater, 121 F.3d 1193, 1199 (8th Cir.

1997) ("In a case involving a degenerative disease . . . where a claimant does not have

contemporaneous objective medical evidence of the onset of the disease, the ALJ must
-7-

consider all of the evidence on the record as a whole, including . . . the retrospective

conclusions and diagnosis of her doctor.").

Dr. Robinette's assessment of Robson's neck condition is contradicted by the

record. "[W]hile entitled to special weight, [a treating physician's opinion] does not

automatically control, particularly if 'the treating physician evidence is itself

inconsistent.'" House, 500 F.3d at 744 (quoting Bentley v. Shalala, 52 F.3d 784, 786

(8th Cir. 1995)). Here, although there is no dispute that Robson suffered from neck

problems during the 1988–1992 period, it is also documented in the record that her

neck condition improved after surgical treatment.

Because the ALJ's hypothetical posed to the VE contained all of the concrete

consequences of Robson's physical deficiencies during the relevant time period, we

conclude that there is substantial evidence on the record as a whole to support the

ALJ's finding that Robson could perform a sedentary job.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

______________________________