Storey v. Commissioner of Social Security

Filing 17

MEMORANDUM OPINION and ORDER: The determination of the Commissioner that Plaintiff Storey is not disabled within the meaning of the Social Security Act is affirmed: Judgment shall enter in favor of the Commissioner and against Storey. Signed by Judge Mark W Bennett on 10/14/15. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JASON B. STOREY,
No. C 14-4104-MWB
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

MEMORANDUM OPINION AND
ORDER ON THE MERITS

Defendant.
___________________________
TABLE OF CONTENTS
I. 

INTRODUCTION........................................................................... 2 
A. 
Factual Background ............................................................... 2 
B. 
The Action For Judicial Review ................................................. 4 

II. 

LEGAL ANALYSIS ........................................................................ 5 
A. 
Standard Of Review ................................................................ 5 
B. 
Review Of Storey’s Challenges ................................................... 7 
1. 
The credibility determination ............................................. 7 
a. 
Arguments of the parties ......................................... 7 
b. 
Analysis .............................................................. 8 
2. 
The residual functional capacity determination .................... 11 
a. 
Arguments of the parties ....................................... 11 
b. 
Analysis ............................................................ 12 
3. 
The available jobs determination ...................................... 14 
a. 
Arguments of the parties ....................................... 14 
b. 
Analysis ............................................................ 15 

III. 

CONCLUSION ............................................................................ 17 

This is an action for judicial review by plaintiff Jason B. Storey of a final decision
of the Commissioner of Social Security (the Commissioner) denying Storey’s application
for Supplemental Security Income benefits (SSI) under Title XVI of the Social Security
Act, 42 U.S.C. § 401 et seq. Storey asserts that the administrative law judge (ALJ),
whose decision became the Commissioner’s final decision, improperly discounted his
credibility and, consequently, improperly determined his residual functional capacity
(RFC), and that the ALJ’s decision that he could perform available jobs is not supported
by substantial evidence. The Commissioner contends that there are no errors in the ALJ’s
determination that Storey is not disabled, so that the ALJ’s decision should be affirmed.
I.
A.

INTRODUCTION
Factual Background

Storey filed an application for disability benefits dated February 14, 2012, alleging
a disability onset date of approximately July 22, 2011. However, SSI payments are not
payable for a period prior to the application date, pursuant to 20 C.F.R. § 416.335, so
the relevant period for a determination of whether or not Storey was disabled is from
February 14, 2012, the date of his application, through June 11, 2013, the date of the
ALJ’s decision. See Cruse v. Bowen, 867 F.2d 1183, 1185 (8th Cir. 1989).
Eventually, Storey’s application proceeded to a hearing before an ALJ on May 6,
2013. In her Decision, dated June 11, 2013, see Transcript Of Record, Part 3 (docket
no. 8-2), the ALJ considered whether Storey was disabled on the basis of degenerative
disc disease of the cervical spine with cervical spondylosis and cervical radiculopathy;
degenerative joint disease of the right shoulder; and obesity. The ALJ made the following
numbered findings of fact and conclusions of law in bold font:
2

The claimant has not engaged in substantial gainful
activity since February 14, 2012, the application date (20
C.F.R. 416.971 et seq.).

1.

2.
The claimant has the following severe impairments:
degenerative disc disease of the cervical spine with cervical
spondylosis and cervical radiculopathy; and degenerative
joint disease of the right shoulder; and obesity (20 C.F.R.
416.920(c)).
The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.
416.920(d), 416.925 and 416.926).

3.

After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
C.F.R. 416.967(b). The claimant is able to lift up to 10
pounds frequently and 20 pounds occasionally primarily
with the left non-dominant upper extremity. The claimant
can sit about 6 hours in an 8-hour day with normal breaks.
The claimant is limited to standing and walking for 4 hours
in an 8-hour day. The claimant should never climb
ladders/ropes/scaffolds or crawl.
The claimant can
occasionally climb stairs/ramps, balance, stoop, kneel and
crouch. The claimant can occasionally reach overhead
with the right dominant upper extremity and frequently
reach overhead with the left non-dominant upper
extremity. The claimant can frequently handle and finger
with right dominant upper extremity. The claimant
should avoid concentrated exposure to work around
hazards such as dangerous moving machinery and
unprotected heights.

4.

5.
The claimant is unable to perform any past relevant
work (20 C.F.R. 416.965).
The claimant was born on October 24, 1972 and was
39 years old, which is defined as a younger individual age
18-49, on the date the application was filed (20 C.F.R.
416.963).

6.

3

The claimant has at least a high school education
and is able to communicate in English (20 C.F.R.
416.964).

7.

8.
Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding that
the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and 20
C.F.R. Part 404, Subpart P, Appendix 2).
9.
Considering the claimant’s age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that the claimant can perform (20 C.F.R.
416.969 and 416.969(a)).
The claimant has not been under a disability, as
defined in the Social Security Act, since February 14,
2012, the date the application was filed (20 C.F.R.
416.920(g)).

10.

Transcript of Record, Part 3, 12-20. Consequently, the ALJ concluded, “Based on the
application for supplemental security income protectively filed on February 14, 2012, the
claimant is not disabled under section 1514(a)(3)(A) of the Social Security Act.” Id. at
20. On September 19, 2014, the Appeals Council denied Storey’s request for review;
thus, the ALJ’s decision operates as the Commissioner’s final decision.

B.

The Action For Judicial Review

Storey filed his Complaint (docket no. 2) initiating this action for judicial review
on November 18, 2014. On February 19, 2015, the Commissioner filed an Answer
(docket no. 7) and the Social Security Transcript Of Record (docket no. 8).
Pursuant to Orders (docket nos. 9 and 11) setting a briefing schedule and extending
the deadline for Storey’s brief, respectively, Storey filed his original Brief And Argument
(docket no. 12) on April 16, 2015. In an Order Re: Briefing (docket no. 13), filed April
20, 2015, Judge Donald E. O’Brien, to whom the case was then assigned, directed Storey
4

to file a supplemental brief addressing specific issues identified in that Order and set a
new briefing schedule.
On May 8, 2015, Storey filed his Supplemental Brief (docket no. 14). On July 7,
2015, the Commissioner filed her Brief (docket no. 15) addressing arguments raised in
both Storey’s original Brief and his Supplemental Brief. Storey filed no reply to the
Commissioner’s Brief. Therefore, this case was ready for decision on July 20, 2015.
On August 20, 2015, this case was reassigned to me. I do not find oral arguments
to be necessary, so I will decide this case, on the merits, on the parties’ written
submissions.
II.

LEGAL ANALYSIS

A.

Standard Of Review

In an action for judicial review, in which an ALJ’s decision denying social security
benefits has become the Commissioner’s final decision, the court must, first, “‘determine
whether the ALJ’s decision complies with the relevant legal requirements.’” Hesseltine
v. Colvin, ___ F.3d ___, ___, 2015 WL 5023479, *3 (8th Cir. Aug. 26, 2015) (quoting
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010)). Those legal requirements,
broadly, are that, in making a disability determination under the Social Security Act, the
ALJ must engage in a five-step process:
During this process the ALJ must determine: “1) whether the
claimant is currently employed; 2) whether the claimant is
severely impaired; 3) whether the impairment is, or is
comparable to, a listed impairment; 4) whether the claimant
can perform past relevant work; and if not, 5) whether the
claimant can perform any other kind of work.” Hacker v.
Barnhart, 459 F.3d 934, 936 (8th Cir.2006) (quotation
omitted); see also 20 C.F.R. § 416.920. If, at any point in
this five-step process the claimant fails to meet the criteria,
the claimant is determined not to be disabled and the process
ends. Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir.2005).
5

Andrews v. Colvin, 791 F.3d 923, 928 (8th Cir. 2015). As the Eighth Circuit Court of
Appeals has explained, “‘The fourth step in this analysis requires the ALJ to determine
a claimant’s RFC,’ which is the disability claimant’s burden to establish.” Id. (quoting
Goff, 421 F.3d at 790). A claimant is not entitled to benefits at step five in the process,
“if . . . the Commissioner shows [the claimant] 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.’”
Papesh v. Colvin, 786 F.3d 1126, 1131 (8th Cir. 2015) (quoting Phillips v. Astrue, 671
F.3d 699, 702 (8th Cir. 2012)).
On judicial review, a court must also “‘determine whether the ALJ’s decision . . .
is supported by substantial evidence in the record as a whole.’” Hesseltine, ___ F.3d at
___, 2015 WL 5023479 at *3 (quoting Halverson, 600 F.3d at 929). The Eighth Circuit
Court of Appeals has “defined substantial evidence as ‘such relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.’” Hesseltine, ___
F.3d at ___, 2015 WL 5023479 at *3 (quoting Halverson, 600 F.3d at 929); Milam v.
Colvin, 794 F.3d 978, 983 (8th Cir. 2015) (“Substantial evidence is ‘less than a
preponderance but . . . enough that a reasonable mind would find it adequate to support
the conclusion.’” (quoting Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010)). More
specifically,
“We must consider evidence that both supports and detracts
from the ALJ’s decision, but we will not reverse an
administrative decision simply because some evidence may
support the opposite conclusion.” Perkins v. Astrue, 648 F.3d
892, 897 (8th Cir.2011) (quotations and citations omitted).
Indeed, we must affirm the denial of benefits if “it is possible
to draw two inconsistent positions from the evidence and one
of those positions represents the ALJ’s findings.” Id.
(quotations and citations omitted).
Milam, 794 F.3d at 983.
6

With these standards in mind, I turn to a review of Storey’s challenges to the ALJ’s
determination that he is not disabled.

B.

Review Of Storey’s Challenges

As noted, above, Storey’s challenges to the ALJ’s decision are (1) that the ALJ
improperly discounted Storey’s credibility; (2) that the ALJ, consequently, improperly
determined Storey’s RFC; and (3) that the ALJ’s decision is not supported by substantial
evidence. I will consider these objections in turn.
1.

The credibility determination
a.

Arguments of the parties

Storey challenges the ALJ’s finding, in the ALJ’s explanation to finding 4., quoted
above, concerning Storey’s RFC, that “claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible for reasons
explained in this decision.” See Transcript of Record, Part 3, at 16. Storey contends
that what follows in the ALJ’s decision is not a list of any specifics of incredibility, but
a general discussion of how his complaints seemed inconsistent with various reports in
the record. In contrast, Storey contends—albeit without citation to any authority—the
most important issue regarding his ability to do light work is whether he can regularly
reach with his dominant right arm. In support of his contention that he cannot do light
work, Storey points to his testimony that, when returning cans, he can insert 100 cans
into the can counter, but must use his left arm after about 25 cans, or he will have bad
neck pain. He contends that his explanation about switching arms fell on deaf ears,
notwithstanding that an ARNP stated, in an April 2013 assessment, that his credibility
with regard to claims of pain was “good,” citing Transcript of Record at 508-09.
In response, the Commissioner argues that, when evaluating a claimant’s
subjective complaints, the ALJ must consider objective medical evidence and any
evidence relating to the claimant’s daily activities; duration, frequency, and intensity of
7

pain; precipitating and aggravating factors; dosage, effectiveness, and side effects of
medication; and functional restrictions, citing Polaski v. Heckler, 739 F.2d 1320, 1322
(8th Cir. 1984). The Commissioner also argues that the ALJ properly found Storey’s
complaints inconsistent with objective medical evidence and that doing so is proper, citing
Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008). Furthermore, the Commissioner
points out that the ALJ observed that Storey’s September 2012 surgery alleviated Storey’s
symptoms. Indeed, the Commissioner points out that Storey relies on evidence from
prior to that surgery—and, for the most part, prior to his application—to support his
claim, while largely ignoring later treatment records showing improvement.

The

Commissioner also argues that the ALJ properly interpreted Storey’s testimony about his
ability to recycle cans and incorporated the limits that the ALJ found credible into her
RFC determination and hypothetical question to a vocational expert.1 In short, the
Commissioner contends that the ALJ properly considered the entire record, properly
discounted Storey’s subjective statements, where they were inconsistent with the record,
and properly explained why she did so.
b.

Analysis

The Eighth Circuit Court of Appeals recently summarized the standards for
discounting a claimant’s subjective complaints of impairments, as follows:
“Where objective evidence does not fully support the
degree of severity in a claimant’s subjective complaints of
pain, the ALJ must consider all evidence relevant to those
complaints.” Holmstrom v. Massanari, 270 F.3d 715, 721
(8th Cir.2001) (citing Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir.1984)). This includes evidence pertaining to
“the claimant’s daily activities”; “the duration, frequency and
1

The Commissioner also argues that the ALJ noted that Storey had been
incarcerated for 7 years for drug-related crimes and that an ALJ may properly consider
a claimant’s criminal convictions in the credibility analysis. I do not find that the ALJ
relied on Storey’s criminal convictions as a basis for discounting his credibility, however.
8

intensity of the pain”; “precipitating and aggravating
factors”; “dosage, effectiveness and side effects of
medication”; and “functional restrictions.” Polaski, 739 F.2d
at 1322. Of course, “[t]he ALJ need not explicitly discuss
each Polaski factor. It is sufficient if he acknowledges and
considers those factors before discounting a claimant’s
subjective complaints.” Strongson v. Barnhart, 361 F.3d
1066, 1072 (8th Cir.2004) (internal citations omitted). “The
ALJ may discount complaints of pain if they are inconsistent
with the evidence as a whole. If the ALJ discredits a
claimant’s credibility and gives a good reason for doing so,
we will defer to its judgment even if every factor is not
discussed in depth.” Perkins [v. Astrue], 648 F.3d [892,] 900
[(8th Cir.2011)] (quotations and citations omitted).
Milam, 794 F.3d at 984.
I conclude that this is a situation in which the ALJ gave good reasons for
discounting Storey’s credibility, so that I should defer to the ALJ’s judgment. Id. Indeed,
Storey completely misses the point with his contention that the ALJ’s credibility
determination cannot stand, because what follows it is not a list of any specifics of
incredibility, but a general discussion of how his complaints seemed inconsistent with
various reports in the record. Inconsistency with the evidence as a whole, and specifically
with medical records, is precisely what the ALJ may consider in discounting a claimant’s
credibility. See id. (“The ALJ may discount complaints of pain if they are inconsistent
with the evidence as a whole.”); Andrews, 791 F.3d at 929 (“Subjective allegations of
pain may be discounted by the ALJ if the evidence as a whole is inconsistent with the
claimant’s testimony.”); Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008)
(specifically listing inconsistency with, or lack of support in, the medical findings and
treatment among the factors that the ALJ properly concluded detracted from the
credibility of the claimant’s complaints). Also, contrary to Storey’s contentions, Storey’s
subjective testimony about differences in his ability to perform tasks with his dominant
9

and non-dominant arms, such as recycling cans, did not fall on “deaf ears.” Rather, the
ALJ’s formulation of Storey’s RFC, as set forth in numbered finding 4., quoted above,
specifically and repeatedly incorporated differences in Storey’s abilities with his dominant
and non-dominant hands or arms.
Furthermore, I note that the ALJ went through a quite exhaustive review of the
record in her explanation of her numbered finding 4., concerning Storey’s RFC. See
Transcript of Record, Part 3, 15-18. In particular, I note that the ALJ considered the
effect of Storey’s surgery in September 2012, which Storey essentially ignores in his
briefing. After citing post-operation records indicating normal progress, see id. at 17,
the ALJ explained,
The undersigned acknowledges that the surgery apparently
took some time to schedule and the claimant necessarily
required a reasonable period of postsurgical convalescence.
However, the record does not reflect that the claimant
experienced pre-surgery deterioration which would preclude
activities consistent with the residual functional capacity as
established above. The undersigned further notes that the
record reflects that the claimant has essentially steadily
improved after the surgery. The claimant was recently seen
and stated that he had been improving slowly in terms of pain
about the arm and shoulder (Exhibit 12F 2). The claimant
also reported that he continued to become easily fatigued with
activity (Exhibit 12F 2). However, the claimant continued to
present in no acute distress with no agitation into December
2012 and thereafter notwithstanding his continuing allegation
of disability with reported pain level of 7 (Exhibit 11F 3-4, 78, 12F 3). The claimant also acknowledged that he was
exercising 5-7 days per week (Exhibit 12F 3). The claimant
further noted that he was actively trying to lose weight, with
the record reflecting that he had some success in weight
reduction (Exhibits 11F 2; 12F 4). Again, the undersigned
has considered the overall record and cannot find that the
claimant has been any more limited than allowed for in the
10

residual functional capacity established above, and certainly
not for any full and continuous 12-month period. Of note, the
evidence does not support a conclusion that the claimant’s
condition declined so precipitously to warrant a finding that
he went from performing medium to heavy work to being
unable to engage in a reduced level of light work as referenced
in the residual functional capacity as established.
Transcript of Record, Part 3, 18. The ALJ’s consideration of these activities is entirely
consistent with the Polaski standards. See Milam, 794 F.3d at 984 (citing Polaski, 739
F.2d at 1322).
I find good reason to defer to the ALJ’s credibility determination and no good
reason to reject it. Storey’s challenge to the ALJ’s credibility determination, thus, fails.
2.

The residual functional capacity determination
a.

Arguments of the parties

Storey next challenges the ALJ’s determination of his RFC, not least because he
contends that the ALJ improperly discounted his credibility. He contends that the ALJ’s
conclusion that he had the RFC to perform light work was equivalent to deciding the case
at step 4 of the process.

In his original Brief, Storey contends that the ALJ’s

determination of his RFC is inconsistent with various treatment records, but he cites only
medical records from prior to his surgery in September 2012, and his subjective testimony
at the hearing before the ALJ. He also contends, again in his original Brief, that it is not
clear where the information concerning exertional limitations and postural limitations set
forth by the ALJ are to be found in the record. He contends that this is so, even though
the ALJ explained that she had considered all symptoms and the extent to which those

11

symptoms could reasonably be accepted as consistent with the objective medical evidence
and other evidence.2
The Commissioner contends, however, that substantial evidence supports the
ALJ’s determination of Storey’s RFC. The Commissioner contends that the ALJ properly
relied on medical records, physician’s observations, and Storey’s subjective statements—
to the extent that the ALJ found them credible. The Commissioner points out that
Storey’s contrary contentions rely on medical records and statements in treatment records
from before his surgery—indeed, before his application for disability benefits—but
subsequent treatment records show that Storey’s impairments had improved.

For

example, the Commissioner directs my attention to post-surgery notes showing that
Storey’s physician released him to activity as tolerated, with a restriction on heavy lifting
for only six weeks, as well as other follow-up records indicating Storey was improving.
In short, the Commissioner contends that substantial evidence supports the ALJ’s RFC
determination and that I should affirm the ALJ’s decision.
b.

Analysis

Again, determination of RFC is part of the fourth step of the five-step process of
disability determination. Andrews, 791 F.3d at 928. More specifically, as the Eighth
Circuit Court of Appeals has explained,
“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
2

Storey’s specific contention, in his Supplemental Brief, with regard to what he
contends is an improper determination of his RFC actually relies on limitations that his
counsel proposed to the vocational expert and that the vocational expert concluded would
leave Storey unable to perform the “light work” jobs that the vocational expert had
identified. See Plaintiff’s Supplemental Brief at 3. Whether jobs exist within a claimant’s
RFC, however, is a question at step 5 of the process, not a question of the extent of the
claimant’s RFC. See, e.g., Andrews, 791 F.3d at 928; Papesh, 786 F.3d at 1131.
12

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
Cir.2012) (brackets omitted). [The claimant] bears the burden
of proving her RFC. See Baldwin, 349 F.3d at 556.
Papesh, 786 F.3d at 1131. Furthermore,
“[A] statement by a medical source that a claimant is disabled
does not necessarily mean the Commissioner will find the
claimant disabled,” Brown v. Barnhart, 390 F.3d 535, 540
(8th Cir.2004), and . . . the ALJ bears “the primary
responsibility for assessing a claimant’s residual functional
capacity based on all relevant evidence,” Wildman [v.
Astrue], 596 F.3d [959,] 969 [(8th Cir.2010)] (quoting
Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir.2000)).
Miller v. Colvin, 784 F.3d 472, 479 (8th Cir. 2015).

RFC is “ultimately an

administrative determination reserved to the Commissioner.” Cox v. Astrue, 495 F.3d
614, 619-20 (8th Cir. 2007).
I conclude that the ALJ’s determination of Storey’s RFC, a determination
ultimately reserved to the ALJ, here, where the ALJ’s decision is the Commissioner’s
decision, see id., is supported by substantial evidence. See Milam, 794 F.3d at 983. To
put it another way, I find that Storey has failed to meet his burden to show that his RFC
precludes even “light work.” Papesh, 786 F.3d at 1131. Storey cannot reasonably argue
that the ALJ did not base her RFC determination on all relevant evidence, including
medical records, observations of treating physicians and others, and Storey’s own
descriptions of his limitations. Id. The ALJ painstakingly detailed the medical records
and Storey’s subjective complaints from both before and after his surgery. See Transcript
of Records, Part 3, at 15-18. The ALJ properly resolved the “conflict” in the records
that Storey implicitly relies on, where Storey points to records from before his surgery
13

to support his contentions, while largely ignoring post-surgery records that support a
much less restrictive RFC. The ALJ considered both sets of records, and relied on the
later records, within the period for which Storey claimed benefits, as properly indicating
his RFC during the period for which benefits might be available. Id. (explaining that it
is the ALJ’s function to resolve conflicts in medical opinions and records). While there
may be no medical records explicitly pointing to “light work” limitations, there are
records from which the ALJ could properly conclude that Storey was only restricted from
heavy work, as “heavy work” restrictions are occasionally noted—albeit as temporary.
Storey’s challenge to the ALJ’s RFC determination, thus, fails.
3.

The available jobs determination
a.

Arguments of the parties

Storey’s final challenge is that there is not substantial evidence to support the
ALJ’s determination that he could perform other work that exists in substantial numbers
in the national economy. In support of this contention, Storey reiterates an argument that
I bypassed, above, as out of place: that the ALJ omitted a key fact from her hypothetical
question to the vocational expert, which, when acknowledged, would have led to a
conclusion that Storey could not perform “light work” jobs that exist in substantial
numbers in the national economy. Specifically, Storey argues that the ALJ’s RFC, and
her hypothetical question to the vocational expert, left out his restrictions on use of his
dominant arm, based on the testimony about recycling cans. Storey contends that, when
his attorney posed a properly formulated hypothetical question to the vocational expert,
the vocational expert admitted that there would not be jobs that he could perform.
In response, the Commissioner argues that the ALJ properly left out of her
hypothetical questions subjective limitations that she did not fully credit.

The

Commissioner contends that the ALJ may properly rely on a vocational expert’s response
to a properly formulated hypothetical question as the basis for a determination that there
14

are jobs that a claimant can perform. The Commissioner argues that the ALJ did just
that, here, so that Storey’s final challenge should fail.
b.

Analysis

This challenge is, in essence, a challenge to the ALJ’s determination at step five
of the process. See Andrews, 791 F.3d at 928. As explained above, a claimant is not
entitled to benefits at step five in the process, “if . . . the Commissioner shows [the
claimant] 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.’” Papesh, 786 F.3d at 1131 (quoting Phillips, 671
F.3d at 702). A vocational expert’s testimony in response to a properly formulated
hypothetical

question

“constitutes

substantial

evidence

supporting

the

ALJ’s

determination that [a claimant] could perform . . . work.” Milam, 794 F.3d at 985 (citing
Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir. 1996), which states, “Testimony from a
VE based on a properly phrased hypothetical question constitutes substantial evidence.”);
Bernard v. Colvin, 774 F.3d 482, 490 (8th Cir. 2014) (concluding that there was
substantial evidence in the record to support a denial of benefits, based on a vocational
expert’s answers to the ALJ’s hypothetical question, which indicated that there was a
significant number of jobs available to a person in the claimant’s condition). A properly
formulated hypothetical question is one that captures the concrete consequences of a
claimant’s deficiencies or limitations. See Gieseke v. Colvin, 770 F.3d 1186, 1189 (8th
Cir. 2014). Also, it is a question that “includes the impairments supported by substantial
evidence and found credible by the ALJ.” Blackburn v. Colvin, 761 F.3d 853, 860-61
(8th Cir. 2014).
In support of his contention that the ALJ’s hypothetical question was flawed, so
that the vocational expert’s response does not constitute substantial evidence of his ability
to work, Storey relies on the following question to the vocational expert by his attorney:
15

Q.
And then I’d also like to ask assuming that—that
this hypothetical individual was limited to reaching or
exerting with his dominant upper extremity to maybe 25
repetitions in a two or three-hour period, and I realize I’m not
talking about any weight in that—in that rough hypothetical,
but assuming that the claimant would be limited to maybe 25
or so repetitions with his right upper extremity before
experiencing enough pain that he had to rest for some time at
least, would he be able to perform the jobs that you’ve talked
about?
A.

No, he would not.

Transcript of Record, Part 3, at 54.
Storey’s reliance is misplaced. First, the attorney’s formulation overstates the
limitations on Storey’s use of his right arm by inserting a time period and rest
requirements that are not reflected in Storey’s testimony, which was that he switches to
use of his left arm when he starts “feeling it” with his right arm. See Transcript of
Record at 33-35. Second, the ALJ’s hypothetical question to the vocational expert did
incorporate differences in Storey’s ability to use his dominant and non-dominant arms to
the extent that the ALJ found Storey’s testimony about those differences credible. See
id. at 48-53; see also Blackburn, 761 F.3d at 860-61 (the ALJ is only required to
incorporate into a hypothetical question limitations that the ALJ finds credible). Third,
I conclude that the ALJ’s hypothetical question to the vocational expert properly captured
the concrete consequences of Storey’s deficiencies or limitations. See Gieseke, 770 F.3d
at 1189. Thus, the vocational expert’s response, indicating that “light work” jobs existed
in significant numbers in the national and regional economy that Storey could perform
“constitutes substantial evidence supporting the ALJ’s determination that [Storey] could
perform . . . work.” Milam, 794 F.3d at 985.
Thus, Storey’s last challenge to the ALJ’s decision denying him disability benefits
also fails.
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III.

CONCLUSION

Upon the foregoing, the determination of the Commissioner that Storey is not
disabled within the meaning of the Social Security Act is affirmed. Judgment shall enter
in favor of the Commissioner and against Storey.
IT IS SO ORDERED.
DATED this 14th day of October, 2015.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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