1

The 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. * 

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Submitted: May 18, 2007

Filed: September 6, 2007

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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 Davidson’s application

for disability insurance benefits. We affirm.
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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

Davidson’s 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 Davidson’s 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
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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

daughter’s 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 ALJ’s 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 Davidson’s 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, Davidson’s 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
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included walking, swimming, and strengthening, and regularly attended her daughter’s

basketball games.

Drawing upon this and other evidence in the record, the ALJ assessed

Davidson’s 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 Davidson’s 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 ALJ’s decision the final decision of the

Commisioner.

The district court upheld the Commissioner’s decision. We review the district

court’s decision de novo, and will affirm if the Commissioner’s 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
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The Appeals Council stated that both reports were from Dr. Sharpe. As noted,

one was from Dr. Sharpe, and one was from Dr. Paul.

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evidence that a reasonable mind would find adequate to support the Commissioner’s

decision. Id.

II.

To be eligible for disability insurance benefits under Title II, a claimant must

meet the statute’s 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. Davidson’s insured status

expired on December 31, 2003, so, like the Commissioner, we consider her condition

before that date.

Davidson’s 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 ALJ’s 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 ALJ’s 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 ALJ’s decision because they did not relate to the

relevant period, having been written in April 2005, some fifteen months after
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Davidson’s insured status expired on December 31, 2003. Our court has reached

different conclusions about whether medical evidence concerning a claimant’s

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 claimant’s condition during the relevant

period) with Basinger v. Heckler, 725 F.2d 1166, 1169 (8th Cir. 1984) (“medical

evidence of a claimant’s condition subsequent to the expiration of the claimant’s

insured status is relevant evidence because it may bear upon the severity of the

claimant’s 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 ALJ’s 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 physician’s 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 physician’s 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. Sharpe’s prior treatment notes, and were

inconsistent with the rehabilitation regimen Dr. Sharpe devised for Davidson. Second,

they were undermined by Davidson’s testimony about her attendance at her daughter’s

basketball games.

Dr. Sharpe’s 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. Sharpe’s notes
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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 physician’s assessment where treatment notes reported no severe

restrictions on walking and standing, and the claimant’s 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 Davidson’s own statements about

her attendance at her daughter’s 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. Sharpe’s opinion that she could sit, stand, and

walk for only three hours per day, and Dr. Paul’s 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 physician’s RFC. Goff v.

Barnhart, 421 F.3d 785, 790-791 (8th Cir. 2005). Thus, the new evidence did not

undermine the ALJ’s decision, which was supported by substantial evidence on the

record as a whole. 

For similar reasons, substantial evidence supported the ALJ’s finding that some

of Davidson’s claims about her own pain and limitations were not credible. The ALJ
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gave some weight to Davidson’s 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 Davidson’s testimony that she needed to elevate her legs to waist

level. As the ALJ noted, this restriction is unsupported by Davidson’s treatment

notes, and it is called into doubt by her active rehabilitation program, which included

weightlifting, biking, swimming, and walking. The ALJ permissibly rejected

Davidson’s 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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