Brooks v. Colvin

Filing 21

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the decision of the Commissioner denying benefits is affirmed.. Signed by District Judge Catherine D. Perry on 7/21/14. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RONALD WILLIAM BROOKS,

)
)
Plaintiff,
)
)
vs.
)
)
1
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 1:13CV65 CDP

MEMORANDUM AND ORDER
This is an action for review of the Commissioner’s decision denying Ronald
William Brooks’s application for Supplemental Security Income (SSI) under Title
XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq.2 The administrative law
judge fully considered Brooks’s subjective complaints, and found his claims to be
overstated. The question posed to the vocational expert was based upon a residual
functional capacity determination supported by substantial evidence, and the
administrative law judge was not required to consider responses to hypotheticals
not reflective of that determination. I will affirm the Commissioner’s decision to
deny Brooks benefits under Title XVI.
1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Brooks also filed an application for disability insurance benefits under Title II of the Social
Security Act. However, Brooks had an insufficient number of quarters of disability insurance to
meet the insured status requirements under the Social Security Act. See 42 U.S.C. §§
416(i)(3)(B), 423(c)(1)(B); 20 C.F.R. § 404.130. As a result, Brooks’s application for SSI was
the only claim before the ALJ.
2

1.
1.1

Background
Procedural History

In August 2010, Brooks filed his application for SSI. On December 22,
2010, the state agency denied Plaintiff’s claim.3 Following a hearing held on
November 2, 2011, an Administrative Law Judge (ALJ) issued a decision on
March 9, 2012, finding that Plaintiff was not under a “disability” as defined in the
Social Security Act. The Appeals Council of the Social Security Administration
denied Brooks’s request for review on February 27, 2013. Thus, the ALJ’s
decision stands as the final decision of the Commissioner.
1.2

Evidence before the ALJ

1.2.1

Disability Report

In the Disability Report that Brooks completed with help from the Social
Security Administration, Brooks described himself as a six foot tall man weighing
215 pounds with an 11th grade education. He was approximately 49 years old at
the time he applied for benefits. Brooks required assistance in submitting his
application because he has difficulty reading and writing. He worked as a parttime concrete finisher as recently as 2010, and alleged May 1, 2010 as the onset
date of his disability. Tr. 176–77, 199, 202.

3

Missouri participates in the modified disability determination procedures, which eliminate the
reconsideration step in the administrative appeals process. See 20 C.F.R. § 416.1406. Brooks’s
appeal proceeded directly from initial denial to ALJ review.

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1.2.2

Medical Records4

In April 1999, Brooks received treatment for a fracture in the cervical region
of his spine. Brooks also reported a back injury suffered six years earlier that
caused lingering pain. He was advised to undergo physical therapy at two sessions
per week and to return in one month for follow-up. He did not return for treatment
until August 1999, when he received a diagnosis of cervicocranial syndrome and
degenerative disc disease. Although spinal injections were not then advised,
Brooks was instructed to restart physical therapy, which he had attended thrice and
ceased due to work conflicts. Tr. 513–17.
Brooks also sought treatment for a torn ligament in his knee in August 1999.
Tr. 519. In August 2000, Brooks was treated again for knee pain, and it was noted
that his knee had atrophied because he stopped his rehabilitation exercises. Doctor
Glen Johnson, M.D., estimated that Brooks sustained a permanent, partial
disability “for failure of follow-up,” and suggested that Brooks could improve
some function with further exercises, but that this exercise would not change his
rating. Tr. 521–22.
Brooks eventually sought treatment from the Shannon County Family
Clinic. In January 2006, Brooks was diagnosed with generalized osteoarthritis of
multiple sites and seasonal pattern depression. By February 2006, there was no
4

Although the court has examined the entirety of the transcript, the summary of medical records
includes only those portions pertinent to Brooks’s claims and the ALJ’s decision.

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longer a diagnosis for seasonal depression; however, the diagnosis of generalized
osteoarthritis remained through July 2006. Tr. 325–27. In September 2006, Dr.
Opinaldo diagnosed Brooks with Anxiety Disorder NOS, osteoarthritis, and a right
rotator cuff sprain. In October of that year, alcoholism and nicotine dependence
were added to his diagnoses. Tr. 324. In November, Feldene was prescribed.5
In December 2006, Brooks complained of sleeping difficulties and pain in
his shoulders, lower back, and knee. Brooks was not in visible distress. His back
was tender to palpation and had muscle spasms. The shoulders showed
abnormalities and were tender at the joint. Both knees were tender to palpation,
showed abnormalities, but there was no swelling in the suprapatellar region. He
was diagnosed with osteoarthritis and seasonal depression and was prescribed
Lisinopril and Trazodone.6 A decrease in breath sounds was heard.
On January 9, 2007, Brooks reported using marijuana and cocaine. He was
in no acute distress. He had muscle spasms in his back, which like his shoulders
was tender to palpation. A decrease in breath sounds was heard. Dr. Opinaldo
5

Feldene is a non-steroidal anti-inflammatory drug (NSAID) and is used to relieve symptoms of
osteoarthritis and rheumatoid arthritis. Feldene: Drug Summary, Physicians’ Desk Reference
(PDR.net), available at http://www.pdr.net/drug-summary/feldene?druglabelid=1000 (last
visited June 25, 2014).
6
Lisinopril is an ACE inhibitor used as an anti-hypertensive medication, and is also known as
Prinivil. Prinivil: Drug Summary, PDR.net, http://www.pdr.net/drugsummary/prinivil?druglabelid=376&id=839 (last visited June 25, 2014). Trazodone is used to
manage anxiety disorders. Trazodone Hydrochloride: Drug Summary, PDR.net,
http://www.pdr.net/drug-summary/trazodone-hydrochloride?druglabelid=3033&id=1684 (last
visited June 25, 2014).

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diagnosed him as having osteoarthritis, anxiety disorder NOS and nicotine
dependence, and he was advised to get an X-ray of his back. Tr. 319–21.
Brooks continued treatment at the Shannon County Family Clinic
approximately once a month throughout 2007 to refill his medications. He
inconsistently complained of shoulder and neck pain and other ailments, including
sinus congestion. Brooks was consistently diagnosed with osteoarthritis and
inconsistently diagnosed with anxiety disorder NOS, seasonal pattern depression,
right rotator cuff sprain, chronic obstructive pulmonary disease (COPD),
alcoholism, and allergic rhinitis. Brooks was consistently prescribed
acetaminophen-hydrocodone for pain, and was inconsistently instructed of other
treatments including hot packs, advised of exercises, and told to get X-rays of his
back, shoulders, and knees. Tr. 303–18.
In 2008, Brooks continued seeking treatment with the clinic. In January,
Brooks reported that his pain was well-controlled with medication, and he was
diagnosed with osteoarthritis and was continued on hydrocodone. In March,
Brooks denied any complaints except for sinus pain and “back symptoms.” In
May, Brooks was diagnosed with osteoarthritis but reported no concerns. Brooks
continued to report to the clinic for refills of his medications and for lab testing
through August, when he was informed that he needed to seek a different provider
within the clinic or elsewhere to refill his narcotic pain medications. In September,

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Brooks again complained of back, knee, and shoulder pain, but reported no recent
injury. He was diagnosed with anxiety order NOS and osteoarthritis; his back,
knees, and shoulders were tender on palpation. Brooks was again prescribed
hydrocodone as needed for pain. In October, Brooks again complained of
shoulder, back, and knee pain. He reported that he did not get his X-rays as
ordered because of financial constraints. Brooks was diagnosed with osteoarthritis
and anxiety disorder NOS, and advised on back-pain management, to maintain
exercise, and to return for an X-ray in 4 weeks. In November, Brooks reported
suffering discomfort when sitting for long periods and with changes in the weather,
but offered no specific problem. He was assessed with osteoarthritis, anxiety
disorder NOS, and again prescribed hydrocodone. In December, X-rays of his
spine, shoulders and knees resulted in diagnoses of back pain and degenerative
joint disease. Tr. 279–302.
Through 2009, Brooks continued receiving treatment at the clinic, primarily
for checkups, lab results, and medication refills. He continued complaining of
back pain, but complained of neck, shoulder, and knee pain only intermittently.
His diagnoses consistently included osteoarthritis and benign essential
hypertension; they included knee joint pain and anxiety disorder NOS only in a
few months. Brooks was prescribed hydrocodone for pain as needed. He reported
using marijuana and cocaine. Tr. 252–78.

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Brooks’s treatment at the clinic continued through 2010. His primary
reasons for seeking treatment were for medication refills and checkups. He
reported that his back pain was controlled fairly well with hydrocodone, and his
diagnoses often included osteoarthritis and pain in his neck, knees, and back. In
March, Brooks said that his shoulder pain had declined since he had recently been
off work, and in April he complained of insomnia. It was repeatedly noted that
Brooks could not afford MRI and X-ray imaging. In June, hydrocodone was
discontinued in favor of Ultram.7 In July, Brooks obtained spinal X-rays and was
taken off narcotic pain relievers and proscribed Mobic, an NSAID.8 The X-rays
revealed slight scoliosis and mild degenerative arthritis of the lumbar spine and
mild-to-moderate degenerative arthritis and straightening of the normal lordotic
curve in the cervical spine. In September, Brooks reported to the clinic
complaining of anxiety. He reported that his urine test at the West Plains pain
management center returned positive for cannabis. Brooks was diagnosed with
depression with anxiety and was prescribed Wellbutrin and Buspar.9 A straight-leg
raising test was negative and Brooks had normal reflexes. Tr. 239–252, 328–29.
7

Ultram is also known as Tramadol, and is an opiate pain reliever. Ultram: Drug Summary,
PDR.net, http://www.pdr.net/drug-summary/ultram?druglabelid=950 (last visited June 25, 2014).
8
Mobic is commonly prescribed for relief of osteoarthritis. Mobic: Drug Summary, PDR.net,
http://www.pdr.net/drug-summary/mobic?druglabelid=1245 (last visited June 25, 2014).
9
Wellbutrin is an antidepressant. Physicians’ Desk Reference, 1290 (68th ed. 2014). Buspar,
also known as Buspirone, is an antianxiety medication. Buspirone Hydrchloride Tablets, USP:
Drug Summary, PDR.net, http://www.pdr.net/drug-summary/buspirone-hydrochloride-tabletsusp-5-mg-10-mg-15-mg-30-mg?druglabelid=1524&id=280 (last visited June 25, 2014).

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Reports from the West Plains pain management center in September 2010
show that Brooks tested positive for cannabinoids and Benzodiazepine and for
Tramadol, which he was prescribed.10 Dr. DeVoe reported that Brooks lacked a
“discrete diagnosis . . . to justify these narcotics” and opined that the narcotics
were not necessary. Tr. 338.
Imaging performed in October 2010 revealed degenerative disc narrowing
and disc bulge in Brooks’s thoracic spine at T6-T7, mild disc bulge without
significant encroachment at T7-T8, mild disc space degeneration at T8-T9 and T9T10, and mild facet joint hypertrophy without encroachment at T10-T11. Imaging
of his knee revealed no acute findings of the right knee. Imaging of the cervical
vertebrae revealed some degenerative changes, mild disc spacing, and disc bulging
and/or spondylosis. Tr. 345–47
Through August 2011, Brooks reported to Missouri Highlands Healthcare
for depression, allergies, and alcohol and tobacco abuse issues. Brooks was
prescribed Wellbutrin, Trazodone, acetaminophen-hydrocodone, and Buspar.
Brooks was repeatedly warned that his excessive consumption of alcohol was a
cause of depression. Tr. 442–59.
In March 2011, Brooks reported to Pain Treatment Associates for low back
pain, which he alleged was aggravated by bending or lifting and somewhat
10

Benzodiazepine is a class of compounds with anti-anxiety, hypnotic, anticonvulsant, and
skeletal muscle relaxant properties. Stedman’s Medical Dictionary, 198 (27th ed. 1999).

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alleviated with sitting. He also reported that the pain limited his daily living
activities and his sleep. Tr. 437. Although he had tenderness in his spine, Brooks
had full motor strength and no tremors in his extremities. Tr. 439. Dr. Thompson
suggested steroidal injections into the spine and lumbar spine medial branch
diagnostic blocks, but Brooks declined treatment. Tr. 433. In the interim, Dr.
Thompson prescribed Norco.11 Tr. 436. In May 2011, Brooks continued to decline
invasive treatments and described a “good benefit” from the Norco. Tr. 430–31.
In July 2011, Dr. Thompson increased the frequency of the Norco and granted an
additional refill. Tr. 427. Brooks continued to decline interventional spine
treatment. Id.
1.2.3

Claimant Testimony

Brooks testified that he lives with his girlfriend of 23 years. Although
Brooks worked for 15 years in the concrete business, he had not worked for at least
18 months and had minimal reported earnings since 2002.12 All of his work
experience involved heavy labor. Brooks needs assistance reading and writing.
HE testified that pain in his lower back, knees, shoulders, and neck prevents him
from working.

11

Norco is prescription opioid painkiller that contains hydrocodone. Norco 5/325: Drug
Summary, PDR.net, http://www.pdr.net/drug-summary/norco-5-325?druglabelid=2132 (last
visited June 25, 2014).
12
Brooks described himself as “self-employed” and, though he filed tax returns, only reported
earnings in 2005 totaling less than $500.

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Brooks admitted to being physically able to assist around the home,
including cooking, limited sweeping, driving, and shopping. He has some
difficulty sleeping, and pain in his shoulders hinders his ability to wash his own
back. It takes Brooks 10 to 15 minutes to get dressed. He suffers from chronic
obstructive pulmonary disease, but smokes a pack of cigarettes each day. His
doctors have advised him to cease smoking and drinking alcohol, but Brooks
continues those habits. Brooks testified that on an average day, he can walk 75
yards without rest, can stand for 20 minutes before sitting, and can sit for 45
minutes at a time. He can lift up to 20 pounds maximum and 5 to 10 pounds
continuously.
Brooks is on a number of pain, blood pressure, anti-constipation, and sinus
medications, which his live-in girlfriend reminds him to take. He stated that the
medications cause drowsiness and sometimes dizziness. At one point, he injured
his knee and received a 30% disability rating. In 1999, he broke his neck. Pain in
his neck occurs twice a day, and lasts until his pain medication causes it to subside.
Brooks reported a little arm pain and numbness in his fingers. Despite his
numbness, Brooks can feel an object that he picks up. He testified that the pain in
his lower back is continuous. Brooks described his knee pain as occurring “just a
little bit every day if [he] walk[s] too far” and “continuous.” Brooks stated that he
cannot lift his leg properly to walk, but instead he drags it along. Tr. 49.

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1.2.4

Vocational Expert Testimony

The ALJ also questioned a vocational expert. The expert was presented with
a hypothetical individual of Brooks’s age, education, and work experience. The
individual could perform light work; occasionally climb stairs and ramps;
occasionally stoop, kneel, crouch, and crawl. The individual could never climb
ropes, ladders, or scaffolds; he could perform frequent reaching in all directions.
The individual should avoid exposure to pulmonary irritants, unprotected heights,
and excessive vibration. The expert testified that such an individual could not
perform Brooks’s past work, but could perform light, simple, and unskilled work
such as a bench assembler, collator operator, or folding-machine operator, and that
such jobs existed in the local and national economy.13
The ALJ presented a second hypothetical, changing the exertional level to
sedentary and limiting overhead reaching to occasional. The expert testified that
such an individual could work in sedentary, simple, unskilled jobs such as a
patcher, final assembler, or document preparer-microfilm. None of these jobs
required reaching above work-station level, and they existed in the local and
national economies. A third hypothetical was presented adding the limitation that
the individual must alternate sitting and standing every 60 minutes; this addition
did not change the performable jobs.
13

The expert testified to actual numbers of jobs present in Missouri and the national economy,
but I have omitted those numbers for the sake of brevity.

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A fourth hypothetical retained the limitations of the third but added
occasional unscheduled disruptions of both workday and work week, secondary to
the need to sit or lie down throughout the day, potential medication side effects,
periods of decompensation, pain distraction, and unreliability in showing for work.
The expert testified that such limitations would preclude work.
1.3

The ALJ’s Decision

The ALJ made the following findings of fact and conclusions of law related
to Brooks’s SSI claim:
1. Brooks has not engaged in substantial gainful activity since August 6,
2010, the application date.
2. Brooks has the following severe impairments: degenerative disc disease,
arthritis, history of bilateral rotator cuff tears, and chronic obstructive pulmonary
disease (COPD).
3. Brooks does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appx. 1.
4. Brooks has the residual functional capacity to perform light work as
defined in 20 CFR 416.967(b), in that he can frequently lift 10 pounds,
occasionally lift 20 pounds, stand or walk for six hours in an eight-hour workday,
and sit for six hours in an eight-hour workday. Non-exertional limitations include:
occasionally climb ramps or stairs but never climb ropes, ladders, or scaffolds;
occasionally stoop, kneel, crouch, and crawl; no more than frequent reaching in all
directions, including overhead; avoid concentrated exposure to pulmonary irritants,
unprotected heights, and excessive vibration.
5. Brooks is unable to perform past relevant work.
6. Brooks is a younger individual age 18-49 on the date the application was
filed; the age category subsequently changed to closely approaching advanced age.
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7. Brooks has a limited education and can communicate in English.
8. Transferability of job skills is not material to the determination of
disability, because using the Medical-Vocational Rules as a framework supports a
finding that Brooks is “not disabled,” whether or not Brooks possesses transferable
job skills.
9. Considering Brooks’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that Brooks can perform.
10. Brooks has not been under a disability, as defined in the Social Security
Act, since August 6, 2010, the date the application was filed.
2.
2.1

Discussion
Legal Standards

To be eligible for Supplemental Security Income under the Social Security
Act, plaintiff must prove that he is disabled. Pearsall v. Massanari, 274 F.3d 1211,
1217 (8th Cir. 2001); Baker v. Sec’y of Health & Human Servs., 955 F.2d 552, 555
(8th Cir. 1992). The Social Security Act defines disability 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. § 1382c(a)(3)(A). An individual will be declared disabled
“only if her physical or mental impairment or impairments are of such severity that
she is not only unable to do [her] previous work but cannot, considering her age,

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education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S.
137, 140–42 (1987). The Commissioner begins by deciding whether the claimant
is engaged in substantial gainful activity. If the claimant is working, disability
benefits are denied. Next, the Commissioner decides whether the claimant has a
“severe” impairment or combination of impairments, meaning that which
significantly limits his ability to do basic work activities. If the claimant’s
impairment(s) is not severe, then he is not disabled. The Commissioner then
determines whether claimant’s impairment(s) meets or is equal to one of the
impairments listed in 20 C.F.R., Subpart P, Appendix 1. If the claimant’s
impairment(s) is equivalent to one of the listed impairments, he is conclusively
disabled. At the fourth step, the Commissioner reviews whether the claimant has
the Residual Functional Capacity (RFC) to perform his past relevant work. If the
claimant can perform his past relevant work, he is not disabled. If the claimant
cannot perform his past relevant work, the burden of proof shifts and the
Commissioner must evaluate whether the claimant can perform other work in the
national economy. If not, the Commissioner declares the claimant disabled. See
Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); 20 C.F.R. § 416.920.

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The decision of the Commissioner must be affirmed if it is supported by
substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir.
2002). Substantial evidence is less than a preponderance but enough that a
reasonable person would find it adequate to support the conclusion. Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial evidence test,”
however, is “more than a mere search of the record for evidence supporting the
Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)
(internal quotation marks and citation omitted). “Substantial evidence on the
record as a whole . . . requires a more scrutinizing analysis.” Id. (internal quotation
marks and citations omitted).
To determine whether the Commissioner’s decision is supported by
substantial evidence on the record as a whole, the court must review the entire
administrative record and consider:
1. The credibility findings made by the ALJ.
2. The plaintiff’s vocational factors.
3. The medical evidence from treating and consulting physicians.
4. The plaintiff’s subjective complaints relating to exertional and nonexertional activities and impairments.
5. Any corroboration by third parties of the plaintiff’s impairments.
6. The testimony of vocational experts when required, which is based
upon a proper hypothetical question that sets forth the claimant’s
impairment.

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Stewart v. Sec’y of Health & Human Servs., 957 F.2d 581, 585–86 (8th Cir. 1992)
(citing Cruse v. Bowen, 867 F.2d 1183, 1184–85 (8th Cir. 1989)).
The court must also consider any evidence which fairly detracts from the
Commissioner’s decision. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d
1047, 1050 (8th Cir. 1999). However, even though two inconsistent conclusions
may be drawn from the evidence, the Commissioner’s findings may still be
supported by substantial evidence on the record as a whole. Pearsall, 274 F.3d at
1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). “[I]f there is
substantial evidence on the record as a whole, we must affirm the administrative
decision, even if the record could also have supported an opposite decision.”
Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation marks
and citation omitted); see also Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977
(8th Cir. 2003).
2.2

Analysis

Brooks claims that the ALJ’s RFC determination was not supported by
substantial evidence because the ALJ improperly discounted his subjective
complaints regarding his ability to sit, stand, sleep, walk, and bathe. Brooks
further alleges the ALJ erred by relying on Brooks’s decision to spend money on
cigarettes and alcohol rather than medical treatment. Brooks finally argues the
ALJ should have relied upon the VE’s testimony with regard to the fourth and most

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limited hypothetical, because that hypothetical was most analogous to what Brooks
believes is the proper RFC.
2.2.1

RFC Determination

At Step Four of the sequential analysis, the ALJ is required to determine a
claimant’s RFC. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004).
RFC is what a claimant can do despite the limitations caused by her impairments.
McGeorge v. Barnhart, 321 F.3d 766, 768 (8th Cir. 2003); Dunahoo v. Apfel, 241
F.3d 1033, 1039 (8th Cir. 2001). Although the claimant has the burden to establish
her RFC, the ALJ bears the primary responsibility for assessing the RFC based on
all relevant, credible evidence in the record, including medical records, the
observations of treating physicians and others, and the claimant’s own description
of her symptoms and limitations. McGeorge, 321 F.3d at 768; see also Goff v.
Barnhart, 421 F.3d 785, 793 (8th Cir. 2005); Eichelberger, 390 F.3d at 591.
“While the claimant has the burden of proving that the disability results from
a medically determinable physical or mental impairment, direct medical evidence
of the cause and effect relationship between the impairment and the degree of
claimant’s subjective complaints need not be produced.” Polaski v. Heckler, 739
F.2d 1320, 1322 (8th Cir. 1984). A claimant’s subjective complaints may not be
disregarded solely because the objective medical evidence does not fully support
them. Id. The absence of objective medical evidence is just one factor to be

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considered in evaluating the claimant’s credibility and complaints. Id. The ALJ
must fully consider all of the evidence presented relating to subjective complaints,
including the claimant’s prior work record and observations by third parties and
treating and examining physicians relating to such matters as: (1) the claimant’s
daily activities; (2) the subjective evidence of the duration, frequency, and intensity
of the claimant’s pain; (3) any precipitating or aggravating factors; (4) the dosage,
effectiveness, and side effects of any medication; and (5) the claimant’s functional
restrictions. Id. “Whether or not a[n] explanation for the pain can be given, it is
nevertheless possible that the claimant is suffering from disabling pain.” Layton v.
Heckler, 726 F.2d 440, 442 (8th Cir. 1984).
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record that cause him to reject the claimant’s complaints.
Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005), Masterson v. Barnhart,
363 F.3d 731, 738 (8th Cir. 2004). “It is not enough that the record contains
inconsistencies; the ALJ must specifically demonstrate that he considered all of the
evidence.” Masterson, 363 F.3d 738. The ALJ, however, “need not explicitly
discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). The ALJ need only acknowledge and consider those factors. Id. Although
credibility determinations are primarily for the ALJ rather than the Court, the

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ALJ’s credibility assessment must be based on substantial evidence. Rautio v.
Bowen, 862 F.2d 176, 179 (8th Cir. 1988).
Although the ALJ found that Brooks’s impairments could be reasonably
expected to cause some of his claimed symptoms, the ALJ found that the extent of
the symptoms was not credible. The ALJ discredited Brooks in part because
Brooks was repeatedly noncompliant with his doctors’ treatment advice.
Noncompliance with treatment may be considered as part of the credibility
analysis. See Holley v. Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001). The ALJ
correctly noted that Brooks was twice reported as noncompliant with his prescribed
physical therapy routines in 1999 and that Brooks repeatedly deferred medial
branch blocks, radiofrequency ablation, and steroid injections in 2011.
One reason Brooks gave for declining treatment was work conflict – a
rationale absent for much of the recent record. Another reason cited was
insufficiency of funds; however, the ALJ correctly notes that Brooks obtained
medical coverage from the State of Missouri in January 2011 (Tr. 21, 204–07) and
that during a large portion of the record, Brooks was noted to be using costly
recreational substances including marijuana, cocaine, cigarettes, and alcohol.
Brooks argues that the ALJ cannot consider expenditures on drugs as part of
the credibility analysis, citing Ambrosini v. Astrue, 727 F. Supp. 2d 414 (W.D.
Penn. 2010). But in that case, the ALJ improperly found that if the claimant

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stopped using drugs, any disability would vanish – a judgment not supported by
medical evidence. Id. at 431. Here, the ALJ made a finding supported by the
evidence that Brooks placed greater importance on using drugs than on paying for
treatment, and this finding undercuts Brooks’s claims as to severity of pain.
There is other evidence in the record to support a finding that Brooks’s
impairments were less restrictive than claimed. In 2010, Dr. Devoe noted that
there was no discrete diagnosis to justify the use of narcotic pain medications and
ceased prescribing the medications to Brooks. Additionally, Brooks’s testimony at
the hearing that he had experienced some numbness in his arm and fingers
conflicted with his treatment records from July 2011, when he denied radiation of
pain, tingling, and numbness. Tr. 427. As recently as March 2011, Brooks had full
motor strength, normal reflexes, and coordinated and smooth gait. Tr. 439. Brooks
also testified that his pain medications provided considerable symptomatic relief.
This weighs in favor of the ALJ’s determination. See Wildman v. Astrue, 596 F.3d
959, 965 (8th Cir. 2010) (“If an impairment can be controlled by treatment or
medication, it cannot be disabling.”) (citation omitted). Finally, Brooks continued
to perform concrete work part-time until 2010. This work was done despite the
presence of the same or similar impairments as now alleged disabling. His ability
to work, even part-time, under those conditions undermines his claims for
disability. See 20 C.F.R. § 416.971; Van Vickle v. Astrue, 539 F.3d 825, 830 (8th

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Cir. 2008) (noting ability to work despite “extreme fatigue); Browning v. Sullivan,
958 F.2d 817, 823 (8th Cir. 1992).
Brooks essentially asks me to reweigh the evidence. But I may neither
reweigh the evidence nor substitute my opinion for the ALJ’s. Young, 221 F.3d at
1068. The ALJ properly considered Brooks’s allegations but cited several valid
reasons for finding them not credible. Substantial evidence exists to support the
ALJ’s credibility and RFC determinations.
2.2.2

Vocational Expert Testimony

Brooks argues that ALJ improperly rejected the vocational expert’s
testimony that a person with an RFC as reflected in the fourth, most severe,
hypothetical could not obtain work in the local or national economy. But that
hypothetical did not comport with the claimant’s RFC as determined by the ALJ.
The expert was, however, presented with a hypothetical matching Brooks’s RFC,
and the expert testified that such an individual could find and perform work in the
local and national economies.
Testimony from a vocational expert based on a properly phrased
hypothetical constitutes substantial evidence. Roe v. Chater, 92 F.3d 672, 675 (8th
Cir. 1996). The hypothetical need only include those impairments that the ALJ
determines are substantially supported by the record as a whole. Lacroix v.
Barnhart, 465 F.3d 881, 889 (8th Cir. 2006). As noted above, the ALJ’s RFC

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determination is supported by substantial evidence. The hypothetical question
rephrased the RFC for the VE and was therefore proper. The VE’s answer
constituted substantial evidence supporting the Commissioner’s denial of benefits.
Accordingly
IT IS HEREBY ORDERED that the decision of the Commissioner
denying benefits is affirmed.
A separate judgment in accordance with this Memorandum and Order is
entered this date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 21st day of July, 2014.

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