Elam v. Astrue

Filing 23

OPINION, MEMORANDUM AND ORDER re: 22 17 10 12 1 ORDERED that the relief sought by Plaintiff in her Complaint and Brief in Support of Plaintiff's Complaint is DENIED. A separate judgment in accordance with this Opinion, Memorandum and Order will be entered this same date. Signed by District Judge Henry E. Autrey on 3/21/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CARMELLA ELAM,

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

Case No. 4:10CV1105 HEA

OPINION, MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the
final decision of Defendant Carolyn W. Colvin, Acting Commissioner of Social
Security, denying the applications of Plaintiff for Supplemental Security Income
(SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 405(g) et seq.
Plaintiff filed a Brief in Support of the Complaint. Defendant filed a Brief in
Support of the Answer.
I.
PROCEDURAL HISTORY

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted
for Michael J. Astrue as the Defendant in this suit. No further action needs to be taken to continue this
suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

Plaintiff filed an application for SSI on August 4, 2006, alleging a disability
onset date of September 1, 2002. Following an unfavorable determination,
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). On
September 9, 2008, a hearing was held before an ALJ. On January 28, 2009, the
ALJ found that Plaintiff was not disabled through the date of the decision. Plaintiff
sought review of the ALJ’s decision with the Appeals Council. On May 6, 2010,
the Appeals Council denied Plaintiff’s request for review. As such, the ALJ’s
decision stands as the final decision of the Commissioner.
II.
LEGAL STANDARDS
Under the Social Security Act, the Commissioner has established a five-step
process for determining whether a person is disabled. 20 C.F.R. §§ 416.920,
404.1529. “‘If a claimant fails to meet the criteria at any step in the evaluation of
disability, the process ends and the claimant is determined to be not disabled.’”
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v.
Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for
disability benefits. 20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant
must have a severe impairment. 20 C.F.R. §§ 416.920(c), 404.1520(c). The Social
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Security Act defines “severe impairment” as “any impairment or combination of
impairments which significantly limits [claimant’s] physical or mental ability to do
basic work activities.” Id. “The sequential evaluation process may be terminated
at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.” Page
v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari,
250 F.3d 603, 605 (8th Cir. 2001) (citing Nguyen v. Chater, 75 F.3d 429, 430-31
(8th Cir. 1996))).
Third, the ALJ must determine whether the claimant has an impairment
which meets or equals one of the impairments listed in the Regulations. 20 C.F.R.
§§ 416.920(d), 404.1520(d); pt. 404, subpt. P, app. 1. If the claimant has one of,
or the medical equivalent of, these impairments, then the claimant is per se
disabled without consideration of the claimant’s age, education, or work history.
Id.
Fourth, the impairment must prevent the claimant from doing past relevant
work. 20 C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at
this fourth step to establish his or her Residual Functional Capacity (“RFC”).
Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step four of this
analysis, the claimant has the burden of showing that she is disabled.”);
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Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363 F.3d 731, 737 (8th
Cir. 2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). The ALJ will
review a claimant’s RFC and the physical and mental demands of the work the
claimant has done in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other
work. 20 C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential
analysis, the Commissioner has the burden of production to produce evidence of
other jobs in the national economy that can be performed by a person with the
claimant’s RFC. Steed, 524 F.3d at 874 n.3; Young, 221 F.3d at 1069 n.5. If the
claimant meets these standards, the ALJ will find the claimant to be disabled.
“The ultimate burden of persuasion to prove disability, however, remains with the
claimant.” Id. See also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004)
(citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to
demonstrate RFC remains on the claimant, even when the burden of production
shifts to the Commissioner at step five.”); Charles v. Barnhart, 375 F.3d 777, 782
n.5 (8th Cir. 2004) (“[T]he burden of production shifts to the Commissioner at
step five to submit evidence of other work in the national economy that [the
claimant] could perform, given her RFC.”).
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Even if a court finds that there is a preponderance of the evidence against
the ALJ’s decision, that decision must be affirmed if it is supported by substantial
evidence. Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “Substantial
evidence is less than a preponderance but is enough that a reasonable mind would
find it adequate to support the Commissioner’s conclusion.” Krogmeier v.
Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See also Cox v. Astrue, 495 F.3d
614, 617 (8th Cir. 2007). In Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988),
the Eighth Circuit Court of Appeals held:
[t]he concept of substantial evidence is something less than the
weight of the evidence and it allows for the possibility of
drawing two inconsistent conclusions, thus it embodies a zone
of choice within which the Secretary may decide to grant or
deny benefits without being subject to reversal on appeal.

See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (“[W]e may not
reverse merely because substantial evidence exists for the opposite decision.”)
(quoting Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)); Hartfield v.
Barnhart, 384 F.3d 986, 988 (8th Cir. 2004) (“[R]eview of the Commissioner’s
final decision is deferential.”).
It is not the job of the district court to re-weigh the evidence or review the
factual record de novo. Cox, 495 F.3d at 617; Guilliams v. Barnhart, 393 F.3d

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798, 801 (8th Cir. 2005); McClees v. Shalala, 2 F.3d 301, 302 (8th Cir. 1993);
Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir. 1992). Instead, the district court
must simply determine whether the quantity and quality of evidence is enough so
that a reasonable mind might find it adequate to support the ALJ’s conclusion.
Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228
F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ,
who is the fact-finder. Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987). See
also Onstead v. Sullivan, 962 F.2d 803, 804 (8th Cir. 1992) (holding that an ALJ’s
decision is conclusive upon a reviewing court if it is supported by “substantial
evidence”). Thus, an administrative decision which is supported by substantial
evidence is not subject to reversal merely because substantial evidence may also
support an opposite conclusion or because the reviewing court would have
decided differently. Krogmeier, 294 F.3d at 1022. See also Eichelberger, 390
F.3d at 589; Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000) (quoting Terrell
v. Apfel, 147 F.3d 659, 661 (8th Cir. 1998)); Hutsell v. Massanari, 259 F.3d 707,
711 (8th Cir. 2001).
To determine whether the Commissioner’s final decision is supported by
substantial evidence, the Court is required to review the administrative record as a
whole and to consider:
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(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating
physicians;
(4) The subjective complaints of pain and description of the
claimant’s physical activity and impairment;
(5) The corroboration by third parties of the claimant’s physical
impairment;
(6) The testimony of vocational experts based upon proper
hypothetical questions which fairly set forth the claimant’s
physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir.
1980); Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).
Additionally, an ALJ’s decision must comply “with the relevant legal
requirements.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
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 has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A).
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“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). When evaluating evidence of pain, the ALJ must
consider:
(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.
Baker v. Sec’y of Health & Human Servs., 955 F.2d. 552, 555 (8th Cir. 1992);
Polaski, 739 F.2d at 1322. The absence of objective medical evidence is just one
factor to be considered in evaluating the plaintiff’s credibility. Id. The ALJ must
also consider the plaintiff’s prior work record, observations by third parties and
treating and examining doctors, as well as the plaintiff’s appearance and demeanor
at the hearing. Polaski, 739 F.2d at 1322; Cruse, 867 F.2d at 1186.

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The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him to reject the plaintiff’s complaints.
Guilliams, 393 F.3d at 801; Masterson v. Barnhart, 363 F.3d 731, 738 (8th Cir.
2004); Lewis v. Barnhart, 353 F.3d 642, 647 (8th Cir. 2003); Hall v. Chater, 62
F.3d 220, 223 (8th Cir. 1995). It is not enough that the record contains
inconsistencies; the ALJ must specifically demonstrate that he considered all of
the evidence. Robinson, 956 F.2d at 841; Butler v. Sec’y of Health & Human
Servs., 850 F.2d 425, 429 (8th Cir. 1988). The ALJ, however, “need not explicitly
discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). See also Steed, 524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972
(8th Cir. 2000)). The ALJ need only acknowledge and consider those factors. Id.
Although credibility determinations are primarily for the ALJ and not the court,
the ALJ’s credibility assessment must be based on substantial evidence. Rautio v.
Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v. Heckler, 780 F.2d 1371,
1374 (8th Cir. 1985).
RFC is defined as what the claimant can do despite his or her limitations, 20
C.F.R. § 404.1545(a)(1), and includes an assessment of physical abilities and
mental impairments. 20 C.F.R. § 404.1545(b)-(e). The Commissioner must show
that a claimant who cannot perform his or her past relevant work can perform
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other work which exists in the national economy. Karlix v. Barnhart, 457 F.3d
742, 746 (8th Cir. 2006); Nevland, 204 F.3d at 857 (citing McCoy v. Schweiker,
683 F.2d 1138, 1146-47 (8th Cir. 1982) (en banc)). The Commissioner must first
prove that the claimant retains the RFC to perform other kinds of work. Goff, 421
F.3d at 790; Nevland, 204 F.3d at 857. The Commissioner has to prove this by
substantial evidence. Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983).
Second, once the plaintiff’s capabilities are established, the Commissioner has the
burden of demonstrating that there are jobs available in the national economy that
can realistically be performed by someone with the plaintiff’s qualifications and
capabilities. Goff, 421 F.3d at 790; Nevland, 204 F.3d at 857.
To satisfy the Commissioner’s burden, the testimony of a vocational expert
may be used. An ALJ posing a hypothetical to a vocational expert is not required
to include all of a plaintiff’s limitations, but only those which he finds credible.
Goff, 421 F.3d at 794 (“[T]he ALJ properly included only those limitations
supported by the record as a whole in the hypothetical.”); Rautio, 862 F.2d at 180.
Use of the Medical-Vocational Guidelines is appropriate if the ALJ discredits the
plaintiff’s subjective complaints of pain for legally sufficient reasons. Baker v.
Barnhart, 457 F.3d 882, 894-95 (8th Cir. 2006); Carlock v. Sullivan, 902 F.2d
1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir. 1989).
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III.
DISCUSSION
The issue before the court is whether substantial evidence supports the
Commissioner’s final determination that Plaintiff was not disabled. Onstead, 962
F.2d at 804. Thus, even if there is substantial evidence that would support a
decision opposite to that of the Commissioner, the Court must affirm the decision
as long as there is substantial evidence in favor of the Commissioner’s position.
Cox, 495 F.3d at 617; Krogmeier, 294 F.3d at 1022.
Plaintiff testified at the hearing that she had two surgeries on her right knee
and one on her left, that she used crutches since falling the previous Sunday. She
further testified that she had been hospitalized twice in the year of the hearing for
her heart, and once in the previous year. Plaintiff further testified that she
graduated from high school, she could do basic math and that she had completed a
trade course at United Business College in 1987. Plaintiff weighed 279 pounds
and was 5'4" tall. Plaintiff had last work ten years prior to the hearing in
housekeeping at hotels. During her employment, Plaintiff was on her feet, except
during lunch.
With respect to her claims of disability, Plaintiff testified that she had
trouble with her knees and she was short of breath. Her shortness of breath
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occurred sometimes while she was sitting, doing nothing.
The ALJ found that Plaintiff had not engaged in substantial gainful activity
since August 4, 2006; that she had the severe impairments of osteoarthritis and
obesity, with a history of congestive heart failure; that she did not have an
impairment or combination of impairments that met or medically equaled a listed
impairment; that Plaintiff had the RFC to perform the full range of sedentary
work2; that Plaintiff had no past relevant work, there is work in the national
economy which Plaintiff can perform; and that, therefore, Plaintiff is not disabled.
Plaintiff contends that the ALJ’s decision is not supported by substantial
evidence because the ALJ failed to sufficiently cite medical evidence to support
his RFC determination but rather relied on the non-medical evidence of an RFC

2

20 C.F.R. § 404.1567(a) defines sedentary work as follows: “Sedentary work involves
lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting,
a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and other sedentary criteria are met.”
Indeed, SSR 85-15, 1985 WL 56857, at *5, states that “[w]here a person has some limitation in
climbing and balancing and it is the only limitation, it would not ordinarily have a significant
impact on the broad world of work. ... If a person can stoop occasionally (from very little up to
one-third of the time) in order to lift objects, the sedentary and light occupational base is virtually
intact.” The sitting requirement for the full range of sedentary work “allows for normal breaks,
including lunch, at two hour intervals.” Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir. 2005)
(citing SSR 96-9p, 1996 WL 374185, at *6 (July 2, 1996)). Additionally the range of sedentary
jobs requires a claimant “to be able to walk or stand for approximately two hours out of an
eight-hour day. The need to alternate between sitting and standing more frequently than every
two hours could significantly erode the occupational base for a full range of unskilled sedentary
work.” Id. at 997 (citing 1996 WL 374185 at *7).
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assessment completed by a state agency disability counselor; because the ALJ
failed to complete a function-by-function assessment of RFC; because the ALJ
failed to properly evaluate the functional effects of Plaintiff’s congestive heart
failure and knee impairments when assessing RFC and failed to consider the
combined effect of Plaintiff’s impairments; because the ALJ failed to complete a
mental RFC assessment, failed to include in his RFC finding the limitations
assessed by the psychological consultant and failed to properly evaluate evidence
of Plaintiff’s mental impairment; The ALJ failed to include a narrative discussion
of his rationale of RFC. Plaintiff further contends that the ALJ erred in failing to
obtain the testimony of a vocational expert at step five of the sequential evaluation
process despite the existence of significant nonexertional impairments.
A.

Plaintiff’s Credibility:

The Court will first consider the ALJ’s credibility determination, as the
ALJ’s evaluation of Plaintiff’s credibility was essential to the ALJ’s determination
of other issues, including Plaintiff’s RFC. See Wildman v. Astrue, 596 F.3d 959,
969 (8th Cir. 2010) (“[The plaintiff] fails to recognize that the ALJ's determination
regarding her RFC was influenced by his determination that her allegations were
not credible.”) (citing Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005)); 20
C.F.R. §§ 404.1545, 416.945 (2010). As set forth more fully above, the ALJ’s
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credibility findings should be affirmed if they are supported by substantial
evidence on the record as a whole; a court cannot substitute its judgment for that
of the ALJ. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Hutsell,
892 F.2d at 750; Benskin, 830 F.2d at 882. To the extent that the ALJ did not
specifically cite Polaski, case law, and/or Regulations relevant to a consideration
of Plaintiff’s credibility, this is not necessarily a basis to set aside an ALJ’s
decision where the decision is supported by substantial evidence. Randolph v.
Barnhart, 386 F.3d 835, 842 (8th Cir. 2004); Wheeler v. Apfel, 224 F.3d 891, 895
n.3 (8th Cir. 2000); Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996);
Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir. 1995). “The credibility of a
claimant’s subjective testimony is primarily for the ALJ to decide, not the courts.”
Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001). “If an ALJ explicitly
discredits the claimant’s testimony and gives good reason for doing so, [a court]
will normally defer to the ALJ’s credibility determination.” Gregg v. Barnhart,
354 F.3d 710, 714 (8th Cir. 2003). See also Halverson v. Astrue, 600 F.3d 922,
932 (8th Cir. 2010); Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). For the
following reasons, the Court finds that the reasons offered by the ALJ in support
of his credibility determination are based on substantial evidence.
The ALJ found that Plaintiff’s statements regarding the intensity,
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persistence and limiting effects of Plaintiff’s impairments were not entirely
credible. First, upon considering Plaintiff’s credibility, the ALJ noted that
although Plaintiff had knee surgeries, there were no findings or abnormalities
noted on Plaintiff’s exams. Plaintiff’s musculoskeletal findings from the
consultive physical examination were essentially normal. Plaintiff’s gait was
abnormal, but she used no assistive device.
Second, regarding Plaintiff’s allegation of depression, the ALJ noted that
Plaintiff was admitted to the hospital in 2005 with suicidal ideation. He had been
depressed and using a lot of drugs and alcohol. She participated in therapy, took
medication and improved. Conditions which can be controlled by treatment are
not disabling. See Harris v. Heckler, 756 F.2d 431, 435-36 n.2 (6th Cir. 1985).
See also Murphy, 953 F.2d 383, 384 (8th Cir. 1992); Warford v. Bowen, 875 F.2d
671, 673 (8th Cir. 1989)( holding that a medical condition that can be controlled
by treatment is not disabling); James for James v. Bowen, 870 F.2d 448, 450 (8th
Cir. 1989). Plaintiff did not see a psychiatrist, psychologist, counselor, or
therapist. There was no evidence of prescription medication for depression. The
failure to seek regular medical assistance for an alleged impairment is reason to
discredit a claimant’s allegation of a disabling condition. See Gwathney v. Chater,
104 F.3d 1043, 1045 (8th Cir. 1997). The court finds that the ALJ’s decision, in
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this regard, is based on substantial evidence and consistent with the Regulations
and case law.
Third, with respect to Plaintiff’s heart problem and high blood pressure,
Plaintiff’s hypertension was controlled, and her congestive heart failure was stable
by January, 2006. However, the record contains various details of Plaintiff’s
noncompliance with her medications. For example, in July, 2006, Plaintiff had not
taken any medication since February, 2006. Plaintiff was advised to quit smoking
and lose weight. Plaintiff apparently did neither. A lack of desire to improve
one's ailments by failing to follow suggested medical advice detracts from a
claimant's credibility. See Johnson v. Bowen, 866 F.2d 274, 275 (8th Cir. 1989)
(holding that the ALJ can discredit subjective complaints of pain based on
claimant's failure to follow prescribed course of treatment); Weber v. Harris, 640
F.2d 176, 178 (8th Cir. 1981). The court finds that the ALJ’s decision, in this
regard, is based on substantial evidence and consistent with the Regulations and
case law.
Fourth, no doctor opined that Plaintiff was unable to work. A record which
contains no physician opinion of disability detracts from claimant's subjective
complaints. See Brown v. Chater, 87 F.3d 963, 964-65 (8th Cir.1996) (lack of
significant restrictions imposed by treating physicians supported the ALJ’s
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decision of no disability); Edwards v. Secretary of Health & Human Services, 809
F.2d 506, 508 (8th Cir. 1987); Fitzsimmons v. Mathews, 647 F.2d 862, 863 (8th
Cir. 1981).
In conclusion, the court finds that the ALJ’s consideration of Plaintiff’s
credibility is based on substantial evidence and that it is consistent with the
Regulations and case law.
B.

Plaintiff’s RFC:
The ALJ found the Plaintiff had the RFC to perform a full range of

sedentary work. The Regulations define RFC as “what [the claimant] can do”
despite his or her “physical or mental limitations.” 20 C.F.R. § 404.1545(a).
“When determining whether a claimant can engage in substantial employment, an
ALJ must consider the combination of the claimant’s mental and physical
impairments.” Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001). “The ALJ must
assess a claimant’s RFC based on all relevant, credible evidence in the record,
‘including the medical records, observations of treating physicians and others, and
an individual’s own description of his limitations.’” Tucker v. Barnhart, 363 F.3d
781, 783 (8th Cir. 2004) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.
2000)). See also Anderson v. Shalala, 51 F.3d. 777, 779 (8th Cir. 1995).
As set forth above, with regard to Plaintiff’s credibility and with regard to whether
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she met or equaled a Listing, the ALJ considered the extent to which Plaintiff’s
allegations were credible in view of the record as a whole, including doctors’
objective findings and Plaintiff’s description to doctors of her symptoms and
abilities. Only after doing so, did the ALJ determine Plaintiff’s RFC. Thus,
Plaintiff’s argument that the ALJ substituted a credibility determination for an
RFC analysis is without merit. As set forth above, the ALJ complied with the
Regulations when he evaluated Plaintiff’s credibility prior to determining his RFC.
See Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001) (“Before
determining a claimant's RFC, the ALJ first must evaluate the claimant's
credibility.”).
Although assessing a claimant’s RFC is primarily the responsibility of the
ALJ, a “‘claimant's residual functional capacity is a medical question.’” Lauer,
245 F.3d at 704 (quoting Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000)). The
Eighth Circuit clarified in Lauer, 245 F.3d at 704, that “‘[s]ome medical
evidence,’ Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000) (per curiam), must
support the determination of the claimant's RFC, and the ALJ should obtain
medical evidence that addresses the claimant’s ‘ability to function in the
workplace,’ Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000).” Thus, an ALJ
is “required to consider at least some supporting evidence from a professional.” Id.
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See also Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (“The ALJ bears
the primary responsibility for determining a claimant's RFC and because RFC is a
medical question, some medical evidence must support the determination of the
claimant's RFC.”); Eichelberger, 390 F.3d at 591. In particular, the ALJ in the
matter under consideration noted that Plaintiff’s record established that she was
never given any medication for her alleged depression; that no physician ever
determined that she was disabled; that her congestive heart failure and high blood
pressure were controlled by medication; that Plaintiff was never told to use an
assistive aid for walking. Thus, the ALJ’s consideration of Plaintiff’s medical
records, upon his determining Plaintiff’s RFC, is based on substantial evidence
and consistent with the requirements of the Regulations and case law. See
Eichelberger, 390 F.3d at 591; Lauer, 245 F.3d at 704; Singh, 222 F.3d at 451.
Further, the court finds that Plaintiff’s argument that the ALJ failed to sufficiently
cite medical evidence when determining Plaintiff’s RFC is without merit. The
ALJ clearly considered the medical evidence of record. To the extent the ALJ may
not have mentioned any particular matter reported by a doctor, this does not mean
the ALJ did not consider such evidence. See Moore ex rel. Moore v. Barnhart, 413
F.3d718, 721 n.3 (8th Cir. 2005) (“The fact that the ALJ’s decision does not
specifically mention the [particular listing] does not affect our review.”);
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Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir. 1995).
“RFC is an issue only at steps 4 and 5 of the sequential evaluation process.”
Id. at n.3. As stated above, at step 4 the claimant has the burden of persuasion to
demonstrate his or her RFC. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.
2004). “If a claimant establishes [his] inability to do past relevant work, then the
burden of proof shifts to the Commissioner.” Goff, 421 F.3d at 790 (citing
Eichelberger, 390 F.3d at 591). In contrast to the first four steps of the sequential
evaluation where the claimant carries the burden of proof, the Commissioner has
the burden of production at step 5. Charles v. Barnhart, 375 F.3d 777, 782 n.5
(8th Cir. 2004). At step 5, “[t]he burden of persuasion to prove disability and to
demonstrate RFC remains on the claimant, even when the burden of production
shifts to the Commissioner.” Goff, 421 F.3d at 790. Also, at step 5, where a
claimant’s RFC is expressed in terms of exertional categories, it must be
determined whether the claimant can do the full range of work at a given
exertional level. The claimant must be able to “perform substantially all of the
exertional and nonexertional functions required in work at that level. Therefore, it
is necessary to assess the individual’s capacity to perform each of these functions
in order to decide which exertional level is appropriate and whether the individual
is capable of doing the full range of work contemplated by the exertional level.”
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Id. In any case, “[a] disability claimant has the burden to establish [his or] her
RFC.” Eichelberger, 390 F.3d at 591 (citing Masterson, 363 F.3d at 737). See
also Vossen, 612 F.3d at 1016.
Upon making an RFC assessment, an ALJ must first identify a claimant’s
functional limitations or restrictions, and then assess his or her work-related
abilities on a function-by-function basis. See Masterson, 363 F.3d at 737; Harris
v. Barnhart, 356 F.3d 926, 929 (8th Cir. 2004). The RFC need only include a
plaintiff’s credible limitations. See Tindell v. Barnhart, 444 F.3d 1002, 1007 (8th
Cir. 2006) (“The ALJ included all of [Plaintiff]’s credible limitations in his RFC
assessment, and the ALJ’s conclusions are supported by substantial evidence in
the record.”). The ALJ found that, consistent with these requirements. As such, the
ALJ proceeded to determine Plaintiff’s exertional level. When doing so, the ALJ
considered that Plaintiff’s doctors had not imposed any limitations. Moreover, the
ALJ considered that prescribed medications improved Plaintiff’s condition. The
ALJ also considered that Plaintiff’s doctors advised Plaintiff stop smoking and
lose weight. None of Plaintiff’s physician’s indicated additional limitations from
those included in the ALJ’s RFC determination. The ALJ’s assessment of
Plaintiff’s RFC is based upon and is consistent with all of the relevant evidence.
See McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000) (“The Commissioner
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must determine a claimant's RFC based on all of the relevant evidence, including
the medical records, observations of treating physicians and others, and an
individual's own description of his limitations.”) (citing Anderson v. Shalala, 51
F.3d 777, 779 (8th Cir.1995). Although Plaintiff argues that the ALJ did not
properly perform a function-by-function assessment of Plaintiff’s RFC, the ALJ
considered the medical evidence, observations of doctors, and Plaintiff’s own
description of her conditions upon determining Plaintiff’s RFC. See Lauer, 245
F.3d at 703. The court finds that the ALJ’s decision, in this regard, is based on
substantial evidence. The medical evidence is inconsistent with Plaintiff’s
allegations of disabling conditions. As such, this Court finds that the ALJ’s RFC
determination is based upon substantial evidence and that it is consistent with the
Regulations and case law and that all arguments which Plaintiff makes to the
contrary are without merit.
C.

Plaintiff’s Failure to Meet or Equal a Listing:
As discussed above, the Commissioner must sequentially consider, at step 2,

whether he has a medically severe impairment that meets the duration requirement
and, at step 3, whether his impairment meets or equals one of the impairments
listed in Appendix 1 to 20 C.F.R. Part 404. See Bowen v. Yuckert, 482 U.S. 137,
140-42 (1987); Goff, 421 F.3d at 789-90; 20 C.F.R. § 404.1520. If the claimant
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has a severe impairment which meets or medically equals a Listing, the claimant is
conclusively presumed to be disabled. Bowen, 482 U.S. at 141. On the other hand,
if the impairment is not one that meets or equals one of the Listings, the
Commissioner must determine whether the impairment prevents the claimant from
performing work that he has performed in the past or whether he is able to perform
other work in the national economy in view of his age, education, and work
experience. Id. at 141-42.
The ALJ found that Plaintiff did not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
Furthermore, the ALJ concluded, after consideration of the entire record that
Plaintiff had the residual functional capacity t perform the full range of sedentary
work.
IV.
CONCLUSION
For the reasons set forth above, the Court finds that substantial evidence in
the record as a whole supports Commissioner’s decision that Plaintiff is not
disabled.
Accordingly,
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IT IS HEREBY ORDERED that the relief sought by Plaintiff in her
Complaint and Brief in Support of Plaintiff’s Complaint is DENIED.
A separate judgment in accordance with this Opinion, Memorandum and
Order will be entered this same date.
Dated this 21st day of March, 2013

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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