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[Unpublished]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 performsedentary work as defined in 20 C.F.R.

§§ 404.1567(a) and 416.967(a), with several limitations. In reaching this RFC 1

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

The limitations were: No climbing ladders, ropes or scaffolds, no standing or 1

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 numbersin the national economy, such as polisher,inspector, orlaminator.

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 fromDereschuk’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 court affirmed the denial of benefits. 2

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

The Honorable TonyN. Leung, United States Magistrate Judge for the District 2

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. “We review de novo the

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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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Dereschuk argues for the first time in his reply brief that the VE erred in 3

testifying that Dereschuk has the RFC to performtwo types ofsedentary 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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