Abel v. Social Security Administration

Filing 17

MEMORANDUM AND ORDER affirming the final decision of the Commissioner and dismissing Plaintiff's Complaint, with prejudice. Signed by Magistrate Judge J. Thomas Ray on 5/16/11. (hph)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
CATHERINE L. ABEL

PLAINTIFF

V.

NO. 4:08CV01413 JTR

MICHAEL J. ASTRUE,
Commissioner, Social
Security Administration

DEFENDANT

MEMORANDUM AND ORDER
I. Introduction
Plaintiff, Catherine L. Abel, has appealed the final decision of the
Commissioner of the Social Security Administration denying her claim for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI). Both parties have
submitted briefs (docket entries #15, #16).
Judicial review of the Commissioner's denial of benefits examines whether the
decision is based on legal error, and whether the findings of fact are supported by
substantial evidence in the record as a whole. 42 U.S.C. §§ 405(g), 1383(c)(3);
Wildman v. Astrue, 596 F.3d 959, 963 (8th Cir. 2010). Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). In its review, the Court
should consider evidence supporting the Commissioner’s decision as well as evidence
detracting from it. Wildman, 596 F.3d at 964. A decision will not be reversed merely

because substantial evidence would have also supported a contrary outcome, or
because the Court would have reached a different conclusion. Id.
On October 18, 2005, Plaintiff filed applications for DIB and SSI, alleging an
onset date of October 13, 2005.1 (Tr. 8, 347.) She reported that she was unable to
work due to depression, anxiety, diabetes, poor eyesight and acid reflux. She said she
was 5'11" and weighed 350 pounds. She stated, “I can’t wake up. I can’t see well. I
want to cry. Half of the time I don’t know if I am coming or going.” She said she quit
working because it was “getting harder and harder to get out of bed.” (Tr. 340-41.)
She was forty-one years old at the time of her applications, had completed high
school, and had past work experience as a cashier and insurance agent. (Tr. 332, 341,
345, 347.)
After her claims were denied at the initial and reconsideration levels, she
requested a hearing before an Administrative Law Judge (ALJ). The ALJ conducted
a hearing and denied relief on March 20, 2008, and the Appeals Council denied
review. (Tr. 36-52, 213-24, 233-36, 406-34.) Plaintiff sought judicial review, and this
Court remanded to the Appeals Council, at the Commissioner’s request, because

1

Plaintiff filed earlier applications for DIB and SSI, which were denied by an
unfavorable ALJ decision on October 12, 2005. (Tr. 198-210.) Plaintiff did not pursue
that claim further. (Tr. 8, 247, 271.) Some documents in the record relate only to these
earlier applications. (Tr. 94-197, 370-405.)
-2-

certain exhibits were missing from the record. The Appeals Council directed the ALJ
to conduct a de novo hearing and take any actions necessary to complete the record.
(Tr. 237-41.) On October 14, 2009, the ALJ conducted a second hearing, at which
Plaintiff, her mother, and a vocational expert testified. (Tr. 62-93.)
The ALJ considered Plaintiff’s impairments by way of the familiar five-step
sequential evaluation process. Step 1 involves a determination of whether the
claimant is involved in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i) &
(b), § 416.920(a)(4)(i) & (b). If the claimant is, benefits are denied, regardless of
medical condition, age, education, or work experience. Id.
Step 2 involves a determination, based solely on the medical evidence, of
whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments which significantly limits the claimant’s ability to perform basic work
activities. Id. § 404.1520(a)(4)(ii) & (c), § 416.920(a)(4)(ii) & (c). If not, benefits are
denied. Id.
Step 3 involves a determination, again based solely on the medical evidence,
of whether the severe impairment(s) meets or equals a listed impairment, which is
presumed to be disabling. Id. § 404.1520(a)(4)(iii) & (d), § 416.920(a)(4)(iii) & (d).
If so, and the duration requirement is met, benefits are awarded. Id.
Step 4 involves a determination of whether the claimant has a sufficient residual
-3-

functional capacity (RFC), despite the impairment(s), to perform the physical and
mental demands of past relevant work.

Id. § 404.1520(a)(4)(iv) & (f), §

416.920(a)(4)(iv) & (f). If so, benefits are denied. Id.
Step 5 involves a determination of whether the claimant is able to make an
adjustment to other work, given claimant’s age, education and work experience. Id.
§ 404.1520(a)(4)(v) & (g), § 416(a)(4)(v) & (g). If so, benefits are denied; if not,
benefits are awarded. Id.
In his March 12, 2010 decision (Tr. 8-21), the ALJ found that Plaintiff: (1) did
not engage in substantial gainful activity from October 13, 2005 (her alleged onset
date) until July 1, 2007, or for any period after October 31, 2009; (2) had “severe”
impairments of diabetes mellitus, depression with anxiety, obesity, coronary artery
disease (CAD), and a vision impairment; (3) did not have an impairment or
combination of impairments that met or equaled a listed impairment; (4) had the RFC
for a limited range of sedentary unskilled work: i.e., the ability to lift and carry ten
pounds occasionally and less than ten pounds frequently, to stand and walk for two
hours during an eight-hour workday, to sit for six hours during an eight-hour workday,
and to frequently climb, balance, crawl, kneel, crouch and stoop; but the inability to
perform work requiring excellent vision; and, non-exertionally, moderate limitations
in her ability to understand, remember and carry out detailed instructions, to make
-4-

judgments on detailed work-related decisions, to interact appropriately with
supervisors and co-workers, and to respond appropriately to usual work situations and
routine work changes; (5) was not fully credible regarding the intensity, persistence
and limiting effects of her symptoms; (6) was unable to perform any past relevant
work; but (7) considering her age, education, work experience and RFC, and based on
the testimony of the vocational expert, was able to perform other jobs that exist in
significant numbers in the national economy. Thus, the ALJ concluded that Plaintiff
was not disabled. Plaintiff did not seek review from the Appeals Council, making the
ALJ’s decision the final decision of the Commissioner. Plaintiff then appealed the
denial of benefits to this Court (docket entry #2).
II. Analysis
Plaintiff argues that the ALJ erred: (1) in failing to consider her impairments
in combination; (2) in discounting the credibility of her subjective complaints; (3) in
assessing her physical and mental RFC; and (4) in formulating the hypothetical
question he asked the vocational expert. For the reasons discussed below, the Court
concludes that Plaintiff’s arguments are without merit.
A.

Relevant Medical Evidence and Hearing Testimony.

1.

Evidence Regarding Physical Impairments.

From 1998 to 2004, Plaintiff received treatment from her primary care
-5-

physicians for adult onset diabetes mellitus, diabetic ulcers, lumbar strain, cellulitis,
abdominal myalgias, acid reflux, yeast vulvitis, and “classic symptoms of quite
elevated sugars.” (Tr. 447-53, 513-19.)
On November 2, 2005, she was hospitalized for complaints of intermittent chest
discomfort, weakness and dizziness, and shortness of breath. She was taking no
medications and said she did not monitor her diabetes as instructed. Dr. Michael
Kaploe admitted her for treatment, observation and testing. (Tr. 460-63, 470.)
A heart catherization showed “normal left ventricular function” and
“hemodynamically insignificant coronary disease.”

(Tr. 466.)

Dr. Kaploe

characterized this as “essentially normal.” (Tr. 456.) The physician who evaluated
her cardiac condition, Dr. D.A. Henry, “strongly urged” her to stop smoking and take
appropriate medical therapy for dyslipidemia and diabetes.

(Tr. 466-67.)

A

hepatobiliary scan showed “delayed isotopic filling of the gallbladder that could be
on the basis of chronic cholecystitis” (gallbladder inflammation).

(Tr. 468.)

However, again, essentially normal results were obtained from abdominal and pelvic
CT studies, an abdominal ultrasound, and an upper gastrointestinal series. (Tr. 45657, 464-65.)
On November 8, 2005, Plaintiff was discharged in satisfactory condition, with
no restrictions on her activities. Dr. Kaploe reviewed her course of treatment and all
-6-

testing results. His diagnoses were: hemodynamically insignificant coronary artery
disease; chest pain, resolved; gastroespohpageal reflux; diabetes mellitus type two,
poorly controlled; morbid obesity; nicotine dependence; and noncompliance.
Adjustments were made in her medications, she was given diabetic supplies (glucose
meter, strips and lancets), and diabetes education was provided. Dr. Kaploe instructed
her that she “needed to make significant lifestyle changes in order to prevent further
deterioration of her health,” including weight loss, smoking cessation, active blood
sugar monitoring, and increased physical activity. (Tr. 454-57.)
On January 1, 2006, Dr. Ronald M. Crow, a state agency medical specialist,
completed a physical RFC assessment based on Plaintiff’s medical records. (Tr. 213,
475-82, 558-64.) He concluded that she had: the ability to occasionally lift/carry fifty
pounds, to frequently lift/carry twenty-five pounds, to stand/walk about six hours in
an eight-hour workday, to sit about six hours in an eight-hour workday; unlimited
ability to push/pull; and no postural, manipulative, visual, communicative or
environmental limitations. (Tr. 476-79.) Dr. Bill F. Payne reviewed the evidence and
affirmed the assessment. (Tr. 215, 510, 552.)
On September 12, 2006, Plaintiff sought treatment for a “pulled muscle” in her
back. Views of her lumbar spine showed “disc height loss at L1-2 with endplate
spurring” and “sclerosis of the facet joints at L5-S1.” (Tr. 522-24.)
-7-

Additional records from her primary care physicians, from August 2007 to July
2009, indicate that she was treated for restless leg syndrome, adult onset diabetes with
poor compliance, hyperlipidemia, vasomotor symptoms, chronic diarrhea, obesity,
vaginitis, and right wrist tendinitis. (Tr. 566-74.) From April 2008 to October 2009,
she was treated at a foot care clinic for cellulitis of the left great toe. (Tr. 576-85.)
2.

Evidence Regarding Mental Impairments.

On May 25, 2006, Dr. Steve A. Shry, a clinical psychologist, evaluated Plaintiff
at the request of the SSA. (Tr. 486-89, 553.) Dr. Shry observed that Plaintiff spoke
in a “dramatic fashion,” tended to “ramble,” was vague, and evidenced some
inappropriate affect. Dr. Shry said she “appeared unmotivated as evidenced by
numerous flippant responses.” She reported that she had auditory hallucinations and
daily suicidal ideation, but seemed lucid during the session and evidenced no
psychotic process. She said she “cries all the time” and “stay[s] tired.” She denied
any difficulties with social relationships. Dr. Shry estimated her IQ as in the
“borderline range,” but stated that she “was somewhat unmotivated in taking the
exam” and “could have possibly performed at a higher level than estimated.” He said
her cognitive level appeared to be at the upper end of the borderline range
intellectually, possibly low average level, and she did “not appear to be significantly
impaired in adaptive functioning.” Assessing her concentration, persistence and pace,
-8-

he stated that she appeared “somewhat distractible and performed sporadically” during
the session. His diagnostic impression was “R/O [rule out] Borderline Personality
Disorder.” As to the validity of his results, he reiterated that Plaintiff appeared
“somewhat unmotivated” during the session.
On June 29, 2006, Dr. Dan Donahue, a state agency medical specialist,
completed a Psychiatric Review Technique form and a mental RFC assessment based
on his review of the medical evidence. (Tr. 490-93, 496-509, 551-57.) He found that
Plaintiff had “symptoms of a significant mental disorder,” which resulted in mild
restrictions in her activities of daily living and social functioning, and moderate
difficulties in maintaining concentration, persistence or pace, but with no evidence of
episodes of decompensation. (Tr. 506, 508.) He further found that she was moderately
restricted in her ability: to understand, remember and carry out detailed instructions;
to maintain attention and concentration for extended periods; to sustain an ordinary
routine without special supervision; to work in coordination with or proximity to
others without being distracted by them; to complete a normal workday and work
week without interruptions from psychologically based symptoms; to accept
instructions and respond appropriately to criticism from supervisors; to respond
appropriately to changes in the work place; and to set realistic goals or make plans
independently of others. He concluded that she was able to perform work where
-9-

“interpersonal contact is routine but superficial, e.g., grocery checker,” where “tasks
are learned by experience, there are several variables, and limited judgment is
required,” and where the supervision required “is little for routine tasks but detailed
for non-routine tasks.” (Tr. 492.)
On May 3, 2007, Plaintiff sought treatment from Counseling Associates due to
depression, thoughts of suicide, and worries over legal issues. She reported being
depressed for the past six months since she and her boyfriend had been arrested for
manufacturing methamphetamine. She said she used methamphetamine daily from
age 39 to 42 (2002-2005) but had been “clean” for eighteen months. The counselor’s
diagnoses were: major depressive disorder, recurrent; and amphetamine dependence,
early full remission.

Plaintiff was instructed to continue abstinence from

methamphetamine, and goals were set to elevate her mood and eliminate suicidal
ideations. (Tr. 525-32.)
On August 9, 2007, she returned to Counseling Associates, maintaining that she
wished everyone would leave her alone and she had “nothing to live for.” However,
as noted by the counselor, she went on to talk about things she enjoyed, including
work, her family’s company, and looking forward to selling her house and moving.
(Tr. 534.)
3.

Plaintiff’s Hearing Testimony.
-10-

At the hearing before the ALJ in October 2009, Plaintiff testified that she
washed dishes but did not sweep, mop or vacuum because, about two years earlier, she
had “some trouble with [her] gallbladder and so that movement hurts.” (Tr. 77-78.)
She said she could walk for “maybe five minutes” because her ankles “get really bad,”
her legs “start hurting,” and her thighs “go numb.” (Tr. 81.) She said that up until six
months earlier, she did her own grocery shopping and had “a little bit” of trouble
getting around the store but “not major.” She said her main difficulty in shopping was
with depth perception and hand numbness. (Tr. 80-83.) She said she liked to read and
watch TV, but usually fell asleep “because I’m just that tired 24/7.” (Tr. 84.) Most
of her testimony concerned her vision problems, which had “gotten worse” in the past
six to seven months. (Tr. 79-80, 87-88.)
B.

Plaintiff’s Arguments.

1.

Combination of Impairments.

Plaintiff first argues that the ALJ “sidestepped” the requirement that her
impairments be considered in combination. In his decision, the ALJ correctly stated
that he had to consider, at step two of the sequential process, whether Plaintiff had a
severe impairment or a "combination of impairments" that was severe, and, at step
three, whether Plaintiff's impairment or "combination of impairments" meets or
medically equals the criteria of a listing. (Tr. 10.) He also correctly stated that he had
-11-

to consider, in assessing Plaintiff's RFC, "all of [her] impairments, including
impairments that are not severe." (Tr. 10.) He found that the specified impairments
were severe “because, singly, and in combination,” they significantly limited her
ability to perform basic work activities. (Tr. 11.) He expressly found that Plaintiff
"does not have an impairment or combination of impairments" that meets or medically
equals a listed impairment, specifically addressing her diabetes, CAD, vision
impairments, obesity, and mental impairments. (Tr. 12.) He also stated that he was
considering "all the evidence" and "the entire record" in making his findings,
including his RFC determination. (Tr. 9, 11, 13, 14, 18.) He discussed the medical
evidence regarding Plaintiff's physical and mental impairments, including those he
found to be non-severe. (Tr. 11-19.)
This record is sufficient to demonstrate that the ALJ considered Plaintiff's
impairments in combination, as required by the regulations and other relevant
authority. See 20 C.F.R. § 404.1523, § 404.1526(b)(3), § 404.1545(a)(2), § 416.923,
§ 416.926(b)(3), § 416.945(a)(2); Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994)
(where ALJ found claimant did not have impairment or combination equaling
listing-level impairment and referred to evidence as a whole, ALJ properly considered
combined effect of impairments).
2.

Credibility.
-12-

Plaintiff contends that the ALJ improperly disregarded her testimony and
subjective allegations of pain, discomfort, and fatigue, as supported by “years of
documented medical evidence.”
A claimant's subjective complaints may be discounted if they are inconsistent
with the record as a whole. Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010).
The ALJ is in the best position to gauge credibility and is granted deference in that
regard if his findings are adequately explained and supported. Steed v. Astrue, 524
F.3d 872, 876 (8th Cir. 2008). See 20 C.F.R. § 404.1529(c) § 416.929(c) (listing
factors to consider); Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984); SSR 96-7p,
1996 WL 374186, at *3, *5 (July 2, 1996). However, an ALJ need only acknowledge
and consider these factors, and need not explicitly discuss each one. Halverson, 600
F.3d at 932.
Here, the ALJ stated that he had considered Plaintiff's statements about her
symptoms in light of the objective medical evidence and other evidence, and in
accordance with the applicable rules and regulations, citing § 404.1529, § 416.929 and
SSR 96-7p. (Tr. 13.) He found that, while Plaintiff's impairments reasonably could
be expected to cause pain and other symptoms, her statements concerning the
intensity, persistence and functionally limiting effects were "not credible to the extent
they are inconsistent" with the RFC assessment. (Tr. 14, 15.) The ALJ's discussion
-13-

(Tr. 14-18) identified the following specific evidence which undermined her
credibility.
The ALJ cited and discussed Plaintiff’s “longstanding history” of uncontrolled
diabetes and noncompliance with her medications and diet, despite being repeatedly
advised and educated about the importance of compliance. (Tr. 15-16, 18-19.) He
also noted her failure to comply with the treatment recommendations given after her
cardiac work-up: statin therapy and cessation of smoking. (Tr. 16.) Noncompliance
with a physician's directions or prescribed treatment is a valid reason to discredit a
claimant's subjective allegations. Wildman, 596 F.3d at 968-69 (failure to comply
with prescribed diet and medications); Choate v. Barnhart, 457 F.3d 865, 872 (8th
Cir. 2006) (failure to take prescribed medications and quit smoking).
The ALJ further noted that, while Plaintiff sought treatment for her other
allegedly disabling physical impairments,2 the treatment she received was “essentially
routine and/or conservative in nature.” (Tr. 19.) He discussed her November 2005
hospitalization, noted that her cardiac work-up was essentially normal, and observed
that she had no ongoing treatment for digestive system disorders. (Tr. 14, 19.) He

2

Plaintiff does not challenge the ALJ’s evaluation of her vision impairments,
including total vision loss in one eye, diabetic retinopathy, early glaucoma, and cataracts.
The ALJ discussed the relevant evidence and included visual restrictions in his RFC. (Tr.
12, 13, 14, 16, 18, 536-45.)
-14-

also addressed the medical evidence of Plaintiff’s complaints of “back and lower
extremity” pain and numbness, properly concluding that there was no evidence of
“anything other than conservative care,” of any referral to a specialist, or of any
prescribed pain medications. (Tr. 15, 19.) This type of evidence is inconsistent with
allegations of disabling physical impairments. See Finch v. Astrue, 547 F.3d 933, 935
(8th Cir. 2008) (relevant factor in credibility determination is lack of objective
medical evidence for alleged pain).
The ALJ also noted that, although Plaintiff reported that she did not have
money for medicine or medical care, there was no evidence that she had ever been
refused medical treatment or that she had contacted any charitable organizations in an
effort to obtain medical care. (Tr. 15.) He also noted that she continued to smoke,
indicating that she “has some money to spend on medical care but chooses to spend
it on cigarettes.” (Tr. 15, 16.) See Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir.
2005) (failure to take prescription pain medication was relevant to credibility
determination where claimant said she could not afford treatment but there was no
evidence she was ever denied medical treatment due to financial reasons); Murphy v.
Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992).
The ALJ also observed that, although Plaintiff alleged disability beginning in
October 2005, she had worked at substantial gainful activity levels between May 2007
-15-

and August 2008, was working at the time of the October 2009 administrative hearing,
and had attested that she was ready, willing and able to work in order to receive
unemployment benefits in late 2008 and part of 2009. (Tr. 11, 89, 287-88, 437.)
Plaintiff testified that she stopped working for one employer in August 2008 because
it went out of business and she “probably” would have continued had it not closed.
(Tr. 89.) She later began working with her mother as a receptionist at a trucking
company, and was working full-time at the time of the hearing. Her mother testified
that her boss recommended Plaintiff for the job because the boss “always liked”
Plaintiff and she “was real good” with talking to the truck drivers. (Tr. 70-71, 73-74,
85, 89-90.) Her mother also testified that Plaintiff did not take any breaks “other than
sit back and close her eyes and rest once in a while.” (Tr. 73.) This evidence provides
valid reasons for discounting Plaintiff’s assertions that she was unable to work during
the applicable time period due to disabling pain and fatigue. See Goff, 421 F.3d at
792-93 (claimant's ability to work in the past with alleged impairments demonstrates
they are not presently disabling; relevant factor in credibility analysis is whether
claimant leaves work for reasons other than medical condition); Cox v. Apfel, 160 F.3d
1203, 1208 (8th Cir. 1998) (claimant’s acceptance of unemployment benefits,
although not dispositive, is facially inconsistent with a claim of disability).
The ALJ's credibility analysis substantively and adequately covered the relevant
-16-

considerations, and he provided good reasons supported by substantial evidence for
not fully accepting Plaintiff's subjective complaints. While there is evidence in the
record both supporting and detracting from the ALJ's conclusion that Plaintiff was not
credible, the ALJ was able to observe Plaintiff during her testimony at the hearing and
this, in addition to the medical and other evidence in the record, convinced the ALJ
that she was not fully credible. Under these circumstances, the ALJ was in the best
position to make a credibility determination, and the Court will defer to that
determination. See Steed, 524 F.3d at 876.
3.

RFC Assessment.

Plaintiff argues that, in evaluating the evidence and formulating her RFC, the
ALJ: neglected to discuss “in any detail” her diagnosed right ankle pain, personality
disorder, sclerosis of the facet joints in the lumbar spine, or borderline intellectual
functioning; failed to say how the effects of her obesity were considered; and failed
to properly evaluate her mental impairments.
It is significant that Plaintiff did not expressly allege, in her application for
benefits, disability due to ankle or back problems, obesity, a personality disorder, or
borderline intellectual functioning. (Tr. 340-41.) See Dunahoo v. Apfel, 241 F.3d
1033, 1039 (8th Cir. 2001). Nevertheless, the ALJ addressed the medical evidence
of Plaintiff’s complaints of “back and lower extremity pain,” as well as her obesity
-17-

and the need for her to eat a proper diet and lose weight to control her diabetes and
other conditions. (Tr. 12, 15-16, 18-19.) His RFC assessment limited her to sedentary
work, which took into account a significant degree of functional limitation due to
these physical conditions.
The ALJ also adequately addressed her mental impairments and stated that the
effects of those impairments had been factored in to his RFC assessment. (Tr. 16-17.)
He noted that Plaintiff did not seek professional mental health treatment until May
2007, almost two years after she applied for benefits. At that time, she reported a sixmonth history of depression, triggered by criminal drug charges against her and her
boyfriend. The ALJ also noted that her treatment appeared successful as the counselor
did not note any suicidal ideation in August 2007, and there is no evidence that any
medication was prescribed to treat any psychologically based symptoms. (Tr. 17.)
The ALJ thoroughly discussed Dr. Shry’s evaluation and findings, including his
impression of “rule out borderline personality disorder,”3 and his estimate of
intellectual functioning in the borderline range. (Tr. 17.) However, Dr. Shry did not
make a definitive diagnosis of borderline personality disorder, and he questioned the

3

This disorder is characterized by pervasive instability in moods, interpersonal
relationships, self-image and behavior. National Institute of Mental Health,
http://www.nimh.nih.gov/health/publications/borderline-personality-disorder-factsheet/index.shtml.
-18-

validity of the intelligence testing due to Plaintiff’s lack of motivation. Neither
diagnosis was made at Counseling Associates. The ALJ accounted for some cognitive
and psychological limitations in his RFC, finding that she was moderately limited in
her ability to understand, remember and carry out detailed instructions, to make
judgments on detailed decisions, to interact appropriately with supervisors and coworkers, and to respond appropriately to work situations.
Other evidence in the record contradicts limited cognitive and social
functioning, including evidence that Plaintiff completed high school without attending
special education classes, “did some college” (where she “made the dean’s list”), and
was able to obtain a license as an insurance agent. Her therapist at Counseling
Associates found that she was of “average” intelligence. (Tr. 347, 389, 412, 531.)
Additionally, there was testimony that she obtained her job at the trucking company
because her mother’s boss “always liked” Plaintiff and she “was real good” with
talking to the truck drivers. (Tr. 73-74.)
4.

Hypothetical Question to Vocational Expert.

Finally, Plaintiff argues that the ALJ neglected to include her obesity or
borderline intellectual functioning in the hypothetical question he asked the vocational
expert. A hypothetical question need include only those impairments or restrictions
that are supported by the record and that the ALJ accepts as valid. Howe v. Astrue,
-19-

499 F.3d 835, 842 (8th Cir. 2007). By limiting the RFC to sedentary work and
including other nonexertional restrictions, the ALJ acknowledged and accounted for
some degree of functional restrictions due to obesity and cognitive impairments. Any
further limitations were properly discredited as not supported by the evidence, as
explained above.
III. Conclusion
After a careful review of the entire record and all arguments presented, the
Court finds that Plaintiff's arguments for reversal are without merit and that the record
as a whole contains substantial evidence upon which the ALJ could rely in reaching
his decision. The Court further concludes that the ALJ’s decision is not based on legal
error.
IT IS THEREFORE ORDERED THAT the final decision of the Commissioner
is affirmed and Plaintiff’s Complaint is DISMISSED, WITH PREJUDICE.
DATED THIS 16th DAY OF May, 2011.

______________________________________
UNITED STATES MAGISTRATE JUDGE

-20-