Wiley v. Colvin

Filing 17

MEMORANDUM AND ORDER re: 9 SOCIAL SECURITY BRIEF filed by Plaintiff Timothy Wiley, 16 SOCIAL SECURITY REPLY BRIEF filed by Plaintiff Timothy Wiley, 15 SOCIAL SECURITY CROSS BRIEF re 9 SOCIAL SECURITY BRIEF filed by Defendant Carolyn W. Colvin. IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 8/8/16. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

TIMOTHY WILEY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 1:15-cv-00059-AGF

MEMORANDUM AND ORDER
This action is before this Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff Timothy Wiley was not disabled
and, thus, not entitled to disability insurance benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401, et seq., or supplemental security income under Title XVI of the
Act, 42 §§ 1381, et seq. For the reasons set forth below, the decision of the
Commissioner will be affirmed.
BACKGROUND
Plaintiff, who was born on June 30, 1965, filed applications for disability benefits
and supplemental security income on December 27, 2011, alleging a disability onset date
of December 23, 2011, due to back, neck, and heart problems; neuropathy; and

depression.1 After Plaintiff’s applications were denied at the initial administrative level,
he requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held
on October 9, 2013, at which Plaintiff and a Vocational Expert (“VE”) testified. By
decision dated October 29, 2013, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform sedentary work with some limitations, and that Plaintiff was
not disabled, based upon the testimony of the VE that there were jobs that an individual
such as Plaintiff could perform. Plaintiff’s request for review by the Appeals Council of
the Social Security Administration was denied on February 18, 2015. Plaintiff has thus
exhausted all administrative remedies, and the ALJ’s decision stands as the final agency
action now under review.
Plaintiff argues that the ALJ’s decision is not supported by substantial evidence in
the record as a whole. Specifically, Plaintiff argues that the ALJ improperly discredited
Plaintiff’s subjective complaints of pain and gave insufficient weight to the opinion of
Plaintiff’s treating neurosurgeon, Sonjay Joseph Fonn, D.O.
Work History and Application Forms
Plaintiff represented on his application forms that he worked from 1993 to 2011,
primarily in the heating and cooling business, as an inspector (1993-1998), service man
(1999-2000), installer (2002-2005), and service manager (2006-2011). He indicated that
he stopped working on December 23, 2011 because of his conditions. (Tr. 321-35.)

1

As Plaintiff’s legal arguments relate primarily to his back problems and
neuropathy, this Memorandum and Order does not discuss Plaintiff’s other impairments
or the ALJ’s findings with respect thereto.
2

On a Function Report dated December 30, 2011, Plaintiff described his typical
daily activities, including personal care; cooking meals; doing housework such as
cleaning, laundry, and washing dishes; shopping for two hours weekly; golfing once a
month; hunting once a week; and fishing. He reported that his condition affected various
abilities, including lifting, squatting, bending, standing, reaching, walking, sitting,
kneeling, stair climbing, and concentration. (Tr. 307-20.)
Medical Records
Prior to his alleged disability onset date (December 23, 2011), Plaintiff had several
back surgeries in 2009, 2010, and early 2011. These surgeries involved fusion operations
and the removal and reinstallation of hardware. (Tr. 377, 426, 561-62.)
On August 3, 2011, in a post-operative visit after his last surgery, Dr. Fonn noted
that Plaintiff was progressing well, his symptoms had improved, and a CT scan showed
good fusion. Dr. Fonn advised Plaintiff to follow up with him after attending physical
therapy. (Tr. 442.) The record does not contain evidence that Plaintiff attended physical
therapy, and he did not return to treatment with Dr. Fonn until March 2012, when he
reported a recurrence of his symptoms, including mid-shoulder pain, not sleeping well,
and worsening numbness in his lower extremities. Dr. Fonn scheduled Plaintiff for a
spinal cord stimulation trial. (Tr. 573.)
On June 14, 2012, Plaintiff had a spinal cord stimulator placed in his back.2
Plaintiff reported good symptom relief in his upper back, but reported that the stimulator

2

Plaintiff reported poor relief of pain after an initial spinal cord stimulation trial,
which Dr. Fonn ascribed to Plaintiff’s weight and a failure to achieve optimum
3

provided little coverage of his lower back. Dr. Fonn reported that Plaintiff received
reasonable coverage from the stimulator given his size. (Tr. 575-77.) On October 24,
2012, Plaintiff reported getting reasonable coverage from his stimulator but said that he
continued to have symptoms in his neck. Dr. Fonn recommended a CT myelogram and a
functional capacity evaluation. (Tr. 622.)
On November 6, 2012, Plaintiff completed a functional capacity evaluation. The
functional capacity evaluation showed the following. Plaintiff was able to perform all
tasks except kneeling down on one knee. He displayed a normal gait, independent
transfers and transitions, and full balance. He could frequently sit, stand, climb, bend,
reach, squad, and twist, and occasionally walk and crawl. Plaintiff was unable to walk
for prolonged or extended periods of time due to self-limiting pain and feelings of his
legs giving way. Plaintiff could perform some material handling tasks at the heavy and
medium level, and could occasionally lift 60 pounds and carry 70 pounds, frequently lift
30 pounds and carry 35 pounds, occasionally push 125 pounds and pull 136 pounds, and
frequently push and pull 30 pounds. (Tr. 585.)
The functional capacity evaluation also showed that Plaintiff failed two out of
eight validity criteria, which were used to determine whether Plaintiff displayed symptom
exaggeration. The two criteria Plaintiff failed were his perceived disability score and his
modified somatic score. Plaintiff’s perceived disability score indicated that Plaintiff’s
perception of himself as crippled did not correlate with his physical functional

positioning of the device. Plaintiff began his second spinal cord stimulator trial on June
14, 2012. (Tr. 574-75.)
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capabilities. Plaintiff’s modified somatic score indicated possible hypochondriasis.3 (Tr.
585-86.) The evaluator stated that despite these findings, Plaintiff appeared to give
maximum effort during testing procedures and also displayed physical signs of good
effort during testing. (Tr. 585.)
Dr. Fonn relied on the functional capacity evaluation to complete a medical source
statement for Plaintiff on November 19, 2012. Dr. Fonn wrote that his diagnosis of
Plaintiff was a lumbar herniated nucleus pulposus without myelopathy; facet arthropathy;
lumbar disc degeneration; lumbar discogenic pain; thoracic radiculopathy; sciatica;
lumbago; cervical radiculopathy; and peripheral neuropathy. Dr. Fonn checked “yes” as
to whether imaging studies documented compromise of Plaintiff’s nerve root or spinal
cord, and exams documented pain and limited range of motion. (Tr. 579.) Dr. Fonn
indicated that Plaintiff was not limited in sitting or standing, that he could walk
occasionally, and that he could lift and/or carry 30 pounds, and frequently bend, twist,
reach, climb, balance, use upper and lower extremities, work around moving machinery,
and drive. (Tr. 581-82.)
Dr. Fonn indicated that he had “not tested” whether Plaintiff was capable of
sustaining a 40-hour workweek. Dr. Fonn checked “yes” as to whether Plaintiff needed
to be able to shift positions at will and sometimes needed to take unscheduled breaks
during an eight-hour work day, but Dr. Fonn wrote that it was “unknown” how often
Plaintiff would need to take breaks or for how long. Dr. Fonn further indicated that
3

The functional capacity evaluation stated that a modified somatic score of greater
than or equal to six was considered high and indicated possible hypochondriasis; Plaintiff
scored a nine.
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Plaintiff would likely be absent from work about once a month due to his impairments,
but he wrote that this was “subject to change.” (Tr. 584.) Dr. Fonn also wrote that
Plaintiff’s prognosis was “good.” (Tr. 580.)
On November 29, 2012, during a cardiology appointment for chest pain, Plaintiff’s
back was reported to be non-tender. (Tr. 609-09.)
Plaintiff saw Dr. Fonn again on March 20, 2013, at which time Plaintiff’s physical
examination was essentially normal. Plaintiff stated that he was unable to afford a CT
myelogram for his neck pain but that he wished to try a course of physical therapy, which
Dr. Fonn recommended. (Tr. 625.)
Plaintiff did not return to Dr. Fonn until August 7, 2013, at which time his
physical examination was still normal. Plaintiff still had not started physical therapy at
this time. Plaintiff reported to Dr. Fonn that he was doing well with the spinal cord
stimulator but that he still only had high coverage. Dr. Fonn told Plaintiff they could
consider repositioning the stimulator after trying a course of physical therapy. (Tr. at 71.)
Evidentiary Hearing of October 9, 2013 (Tr. 97-124)
1.

Plaintiff’s testimony (Tr. 102-19)

At the October 9, 2013 evidentiary hearing in this matter, Plaintiff testified to
experiencing pain in his lower back and weakness and numbness in his legs. Plaintiff
testified that he spent about four hours a day sitting in a recliner with his feet elevated
and that his pain limited his ability to walk for more than 20 minutes at a time, stand or
sit for more than 10 to 15 minutes, lift 20 pounds repetitively, drive long distances, or

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sleep regularly. Plaintiff testified that he drove 70 miles to attend the hearing but that
driving was painful.
Plaintiff also testified that his impairments caused him to stop bowling, to
decrease golfing to only once or twice since his first surgery, and to decrease hunting and
fishing to one day a week, for approximately three to four hours. He testified that he is
no longer able to climb trees to hunt, but that, instead, he rides a four-wheeler and sits in
a “blind” while hunting. He testified that when is in the blind, he has to alternate
between sitting and standing because of the pain. Plaintiff also testified that, whereas he
used to be able to fish all day in a boat, he is now able to fish for only two to three hours
at a time but that he is able to rod, reel, haul in, and net fish, including bass.
Plaintiff testified that he walks his 20-pound dog for about 15 minutes a day, visits
his brother, goes grocery shopping, and occasionally goes to church.
2.

Testimony of VE (Tr. 119-24)

The ALJ asked the VE whether a hypothetical individual with the same education,
vocational background, and residual functional capacity (“RFC”) as Plaintiff could
perform Plaintiff’s past relevant work or any other jobs that exist in significant numbers
on a regional and national level. The VE testified that such an individual could not
perform Plaintiff’s past relevant work but could perform the jobs of credit checker,
document preparer, or eyeglass polisher, which exist in significant numbers in the state of
Missouri and the national economy.
The ALJ proposed a second hypothetical individual the same as the first but with
the following additional limitations: he would have to alternate between sitting and
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standing at least every 15 minutes, need to recline for four out of eight hours a day, and
would be absent from work at least once a month. The VE testified that, for such an
individual, work would be precluded.
Plaintiff’s attorney offered a third hypothetical in his questioning of the VE.
Plaintiff’s attorney asked the VE to consider the ALJ’s first hypothetical individual and
add only one additional limitation: that he would have to alternate between sitting and
standing every 15 minutes. The VE testified that such an individual would be precluded
from working.
ALJ’s Decision of October 29, 2013 (Tr. 40-59)
The ALJ determined that Plaintiff had not engaged in substantial gainful activity
since December 23, 2011, the alleged disability onset date. The ALJ found that Plaintiff
had the severe impairments of obesity, degenerative disc disease of the cervical spine,
and degenerative joint disease of the lumbar spine, but that no impairment or combination
of impairments met or medically equaled the severity of one of the impairments listed in
20 C.F.R. Part 404, Subpart P, Appendix 1.
After considering the entire record, the ALJ then found that Plaintiff had the RFC
to perform sedentary work as defined in the Commissioner’s regulations, in that he could
lift and carry 20 pounds occasionally and 10 pounds frequently, he could walk or stand
for two hours in an eight-hour workday, and he could sit for approximately six hours in
an eight-hour workday. The ALJ found that Plaintiff could occasionally climb stairs, but
he could not climb ladders, ropes, or scaffolds, and that he could frequently balance, but
could only stoop, crouch, kneel, or crawl occasionally. Finally, the ALJ found that
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secondary to reported chronic pain, Plaintiff was limited to jobs that do not demand
attention to details or complicated job tasks or instructions.
The ALJ relied on the VE’s testimony that an individual with Plaintiff’s RFC and
vocational factors could perform certain jobs that existed in substantial numbers in the
national economy, such as credit checker, document preparer, and eye glass polisher.
Thus, the ALJ found that Plaintiff was not disabled as defined by the Act.
In making his findings with respect to Plaintiff’s RFC assessment, the ALJ
determined that Plaintiff’s allegations of disability were not “fully credible” and did not
warrant additional limitations beyond those established in the RFC outlined earlier.
Considering the requirements of 20 C.F.R. §§ 404.1529 and 416.929, the ALJ found that,
despite Plaintiff’s significant treatment history prior to his December 23, 2011 alleged
disability onset date, his relative lack of treatment after the onset date was inconsistent
with his allegations of disabling pain and limitations. In particular, the ALJ noted that
Plaintiff reported he was doing well and pleased with his progress in August 2011; that
Plaintiff thereafter had large gaps in his treatment by Dr. Fonn; and that Plaintiff did not
attend physical therapy as prescribed by Dr. Fonn.
In addition to Plaintiff’s conservative treatment history after his alleged disability
onset date, the ALJ considered objective medical findings during the relevant period and
found them to be inconsistent with Plaintiff’s subjective complaints of pain. The ALJ
cited evidence that Plaintiff displayed a normal gait despite a tender lower back between
November 2011 and August 2012, and noted that Plaintiff’s lower back was non-tender
in November 2012. The ALJ also noted that Plaintiff’s medical records showed he
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displayed a normal gait and only occasionally tender lower back through 2013, and that
Dr. Fonn reported Plaintiff to have essentially normal physical examinations in March
and August of 2013. Thus, the ALJ concluded that the clinical signs and medical
findings during the relevant period were minimal and inconsistent with disabling pain.
Next, the ALJ considered Plaintiff’s activities of daily living and concluded that
these, too, were inconsistent with his allegations of disabling pain. The ALJ cited
evidence that Plaintiff ran errands, cooked, performed personal care and household
chores, cared for his dog, shopped each week for two hours, drove 70 miles to the
hearing, fished or hunted once a week for three to four hours at a time, rode fourwheelers, occasionally attended church, and continued to play nine holes of golf each
month.
Finally, the ALJ noted that the record contained evidence of symptom
exaggeration in the form of the functional capacity examination in November 2012, in
which Plaintiff failed two out of eight validity criteria, indicating possible
hypochondriasis.
The ALJ also gave “little weight” to Dr. Fonn’s opinion in his medical source
statement with respect to Plaintiff’s need to be able to shift positions at will, to sometimes
take unscheduled breaks, and to likely be absent from work about once a month. The
ALJ found that Dr. Fonn’s opinion in these respects was not consistent with Plaintiff’s
conservative treatment history during the relative period, the objective medical evidence
during the relevant period, and Plaintiff’s activities of daily living as set out above. The
ALJ also noted that Dr. Fonn’s opinion was based on Plaintiff’s functional capacity
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examination, which as discussed above was of “questionable validity” in light of
Plaintiff’s failing two validity criteria.
DISCUSSION
Standard of Review and Statutory Framework
The Court’s role on judicial review is to determine whether the ALJ’s findings are
supported by substantial evidence in the record as a whole. Pate–Fires v. Astrue, 564
F.3d 935, 942 (8th Cir. 2009). In determining whether the evidence is substantial, the
Court considers evidence that both supports and detracts from the Commissioner's
decision. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). As long as substantial
evidence supports the decision, the Court may not reverse it merely because substantial
evidence exists in the record that would support a contrary outcome or because the court
would have decided the case differently. See Krogmeier v. Barnhart, 294 F.3d 1019,
1022 (8th Cir. 2002). A court should “disturb the ALJ’s decision only if it falls outside
the available zone of choice.” Papesh v. Colvin, 786 F.3d 1126, 1131 (8th Cir. 2015)
(citation omitted).
To be entitled to benefits, a claimant must demonstrate an inability to engage in
substantial gainful activity which exists in the national economy, by reason of a
medically determinable impairment which has lasted or can be expected to last for not
less than 12 months. 42 U.S.C. § 423(d)(1)(A). The Commissioner has promulgated
regulations, found at 20 C.F.R. § 404.1520, establishing a five-step sequential evaluation
process to determine disability. The Commissioner begins by deciding whether the
claimant is engaged in substantial gainful activity. If so, benefits are denied. If not, the
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Commissioner decides whether the claimant has a “severe” impairment or combination of
impairments. A severe impairment is one which significantly limits a person’s physical
or mental ability to do basic work activities. 20 C.F.R. § 404.1521(a).
If the claimant does not have a severe impairment that meets the duration
requirement, the claim is denied. If the impairment or combination of impairments is
severe and meets the duration requirement, the Commissioner determines at step three
whether the claimant’s impairment meets or is equal to one of the deemed-disabling
impairments listed in the Commissioner’s regulations. If not, the Commissioner asks at
step four whether the claimant has the RFC to perform his past relevant work. If so, the
claimant is not disabled. If he cannot perform his past relevant work, the burden of proof
shifts at step five to the Commissioner to demonstrate that the claimant retains the RFC
to perform work that is available in the national economy and that is consistent with the
claimant’s vocational factors—age, education, and work experience. Halverson v.
Astrue, 600 F.3d 922, 929 (8th Cir. 2010).
Subjective Complaints
Before determining a claimant’s RFC, the ALJ must evaluate the claimant’s
credibility with respect to the severity of his limitations. Pearsall v. Massanari, 274 F.3d
1211, 1218 (8th Cir. 2001). In Polaski v. Heckler, 739 F.2d 1320, 1332 (8th Cir. 1984),
the Eighth Circuit held that the “absence of an objective medical basis which supports the
degree of severity of subjective complaints alleged is just one factor to be considered in
evaluating the credibility of the testimony and complaints.” The ALJ must also examine
“the claimant’s prior work record and observations of third parties and physicians relating
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to: (1) the claimant’s daily activities; (2) the duration, frequency and intensity of the pain;
(3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of
medication; and (5) functional restrictions.” Samons v. Astrue, 497 F.3d 813, 820 (8th
Cir. 2007) (citation omitted).
“If the ALJ discredits a claimant’s credibility and gives a good reason for doing
so, [the court] will defer to [his] judgment even if every factor is not discussed in depth.”
Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001).
In this case, “[a]lthough the ALJ never expressly cited Polaski (which is [the
Eighth Circuit’s] preferred practice), the ALJ cited and conducted an analysis pursuant to
20 C.F.R. §§ 404.1529 and 416.929, which largely mirror the Polaski factors.” Schultz v.
Astrue, 479 F.3d 979, 983 (8th Cir. 2007). The ALJ articulated the inconsistencies upon
which he relied in discrediting Plaintiff’s subjective complaints of disabling pain. These
included Plaintiff’s: (1) conservative treatment history after the alleged disability onset
date, including his failure to follow prescribed courses of physical therapy, (2) recent
medical records indicating normal gait, occasionally tender lower back, and normal
physical examinations, (3) wide range of daily activities, including hunting or fishing
once a week, and (4) evidence of symptom exaggeration in the functional capacity report.
These inconsistencies constitute good reasons for discrediting Plaintiff’s subjective
complaints. See Julin v. Colvin, No. 15-1280, 2016 WL 3457265, at *3 (8th Cir. Oct. 20,
2015) (finding that the plaintiff’s failure to follow a prescribed course of treatment
supported the ALJ’s decision to discredit his subjective complaints); Johnson v. Colvin,
No. 1:14CV28 TIA, 2015 WL 249369, at *11 (E.D. Mo. Jan. 20, 2015) (holding that
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infrequent treatment during the relevant period is a basis for discounting subjective
complaints); Medhaug v. Astrue, 578 F.3d 805, 817 (8th Cir. 2009) (“[A]cts such as
cooking, vacuuming, washing dishes, doing laundry, shopping, driving, and walking, are
inconsistent with subjective complaints of disabling pain.”); Kelley v. Barnhart, 372 F.3d
958, 961 (8th Cir. 2004) (holding that an ALJ may consider a claimant’s unresponsive or
exaggerated responses during a medical examination).
In his social security brief, Plaintiff correctly notes that the ALJ did not discuss
Plaintiff’s work history, but as discussed above, the ALJ need not “explicitly discuss each
Polaski factor in a methodical fashion.” Brown v. Chater, 87 F.3d 963, 966 (8th Cir.
1996) .
Plaintiff also asserts that the reason he did not seek more treatment or follow all
prescribed treatment was because he could not afford it; that his daily activities were
“more nuanced than acknowledged by the ALJ” and not necessarily inconsistent with his
allegations of pain; and that despite failing two out of eight validity criteria in the
functional capacity evaluation, he was found to have given good effort during the
evaluation, which weighed against a finding of symptom exaggeration.
The Court acknowledges that there may be substantial evidence in the record that
would support both the ALJ’s conclusion that Plaintiff was not credible, and Plaintiff’s
arguments to the contrary.4 However, the ALJ was able to observe Plaintiff during his

4

With respect to Plaintiff’s alleged financial constraints, there was no indication in
the record that Plaintiff was refused physical therapy or other prescribed treatment based
on ability to pay or that he attempted to seek alternative payment methods to complete
the prescribed treatment. See Clark v. Shalala, 28 F.3d 828, 831 n.4 (8th Cir. 1994)
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testimony at the hearing and this, in addition to the reasons cited above, convinced the
ALJ that Plaintiff was not fully credible and could perform sedentary work with some
limitations. The ALJ is in the best position to make this determination, Ramirez v.
Barnhart, 292 F.3d 576, 581 (8th Cir. 2002), and the Court cannot say that the ALJ erred
in doing so.
Opinion of Plaintiff’s Treating Physician
“A treating physician’s opinion regarding an applicant’s impairment will be
granted controlling weight, provided the opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in the record.” Samons v. Astrue, 497 F.3d 813, 817–18 (8th
Cir. 2007). Even if the opinion is not given controlling weight, it may be entitled to
substantial weight. Id. “However, an ALJ may discount or even disregard the opinion of
a treating physician where other medical assessments are supported by better or more
thorough medical evidence, or where a treating physician renders inconsistent opinions
that undermine the credibility of such opinions.” Anderson v. Astrue, 696 F.3d 790, 793
(8th Cir. 2012) (citation omitted). “Ultimately, the ALJ must give good reasons to
explain the weight given the treating physician’s opinion.” Id. (citation omitted).
Here, the ALJ articulated good reasons, supported by substantial evidence in the
record, for giving little weight to Dr. Fonn’s opinion with respect to Plaintiff’s need to be

(finding lack of medical treatment was a valid reason, among other reasons, to discount
subjective pain because even though plaintiff lacked financial resources, she offered no
testimony that she had been denied further treatment or access to prescription pain
medication on account of financial constraints).
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able to shift positions at will, to sometimes take unscheduled breaks, and to likely be
absent from work once a month. These limitations were not consistent with Plaintiff’s
conservative treatment history during the relative period, objective medical evidence
during the relevant period, and Plaintiff’s daily activities and hobbies, as discussed
above. See id. (finding that an ALJ properly discounted the opinion of a treating
neurologist where the opinion consisted of a conclusory checkbox form, listed significant
limitations that were not reflected in treatment notes or other medical records, and
assigned more physical limitations than the plaintiff exhibited in daily living). And as the
ALJ noted, Dr. Fonn’s opinion was based on a functional capacity evaluation that
indicated Plaintiff may have been exaggerating his symptoms.
In addition, the Court agrees with Defendant’s assertion in its response brief that
some of the ALJ’s RFC limitations are actually more limiting than those listed in Dr.
Fonn’s opinion, including with respect to Plaintiff’s lifting capacity and ability to sit,
stand, and climb. And Dr. Fonn’s opinion itself indicated that he had “not tested”
whether Plaintiff was capable of sustaining a 40-hour workweek, that it was “unknown”
how often Plaintiff would need to take breaks or for how long, and that Plaintiff’s need to
be absent from work once a month was “subject to change.” An “ALJ is not required to
rely entirely on a particular physician’s opinion” in formulating the RFC. Martise v.
Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (citation omitted). Here, the ALJ properly
made the RFC determination based on the record as a whole, and substantial evidence
supports the ALJ’s decision.
CONCLUSION
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Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
AFFIRMED.
A separate Judgment shall accompany this Memorandum and Order.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 8th day of August, 2016.

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