Keeling v. Astrue

Filing 19

MEMORANDUM OPINION - IT IS HEREBY ORDERED that the relief sought by Plaintiff in her Complaint and Brief in Support of Complaint is DENIED; Docs. 1, 14, IT IS FURTHER ORDERED that a separate judgment be entered incorporating this Memorandum Opinion. Signed by Magistrate Judge Mary Ann L. Medler on 2/3/12. (LAH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DONNA F. KEELING,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No. 4:10CV1975MLM

MEMORANDUM OPINION
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision of
Michael J. Astrue (“Defendant”) denying the applications of Donna F. Keeling (“Plaintiff”) for
Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and
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. Doc.14. Defendant filed a Brief in
Support of the Answer. Doc.17. The parties have consented to the jurisdiction of the undersigned
United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c)(1). Doc. 11.
I.
PROCEDURAL HISTORY
Plaintiff filed applications for benefits on May 18, 2006, alleging a disability onset date of
April 15, 2006. Tr. 64-70. Following an unfavorable determination, Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”). Tr. 62-67. On September 24, 2008, a hearing was held
before an ALJ. Tr. 15-27. On October 10, 2008, the ALJ found that Plaintiff was not disabled
through the date of the decision. Tr. 9-21. Plaintiff sought review of the ALJ’s decision with the

Appeals Council. Tr. 6-8. On August 20, 2010, the Appeals Council denied Plaintiff’s request for
review. Tr. 1-5. 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 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.

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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.”);
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.”).
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.

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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 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

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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:
(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).
“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

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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.
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

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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 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 his 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 a ninth-grade education; that she had not worked
since April 2006; that she had difficulty breathing due to COPD; that she had depression, ankle pain,
and panic attacks; that her ankle pain ranged from six to ten out of ten; that she had difficulty working
with others; that she slept a lot when she was depressed; that her bipolar disorder affected her
concentration; and that, in an eight-hour day she could lift ten pounds, stand thirty minutes, and walk
one block. Tr. 28, 33-34, 44-48, 49-50.
The ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged
onset date; that Plaintiff had the severe impairments of COPD, bipolar disorder, and surgical repair
of a fractured ankle; that Plaintiff did not have an impairment or combination of impairments that met
or equaled a listed impairment; that Plaintiff had the RFC to perform light work with certain
restrictions; that Plaintiff’s complaints regarding the intensity, persistence, and effects of her
symptoms were not fully credible; that Plaintiff was not able to perform her past relevant work; that
there were other jobs which existed in significant numbers which Plaintiff could perform; and that,
therefore, Plaintiff was not disabled. Tr. 9-21.
Plaintiff argues that the ALJ’s decision is not supported by substantial evidence because the
ALJ erred in finding Plaintiff not fully credible; because the ALJ failed to properly address the medical
evidence, including letters from Robert Patterson, D.O., and the opinion of Brian Edwards, D.O.;
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because the ALJ’s RFC did not include a “narrative discussion” of the medical evidence and did not
account for Plaintiff’s mental restrictions and restrictions related to her COPD; and because the ALJ
did not submit a properly formulated hypothetical to the VE.1
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 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, 393 F.3d at 801; 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). Additionally, an ALJ need not methodically discuss each Polaski factor if the
factors are acknowledged and examined prior to making a credibility determination; where adequately
explained and supported, credibility findings are for the ALJ to make. See Lowe v. Apfel, 226 F.3d

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Plaintiff’s Brief in Support of Complaint, which is five pages, does not cite or refer
to any of the medical evidence of record. In particular, Plaintiff does not suggest any aspect of
her medical records which the ALJ failed to consider nor does she suggest any aspect of her
medical records which supports her claim regarding the severity of her pain.
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969, 972 (8th Cir. 2000). See also Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (“The ALJ
is not required to discuss each Polaski factor as long as the analytical framework is recognized and
considered.”); Strongson, 361 F.3d at 1072; Brown v. Chater, 87 F.3d 963, 966 (8th Cir. 1996). In
any case, “[t]he 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.
First, the ALJ considered that Plaintiff’s bipolar disorder was controlled by medication. Tr.
17-19. In particular, on May 27, 2005, when Plaintiff was seen for follow-up regarding her
medications, Plaintiff told Dr. Patterson that she was feeling better due to her antidepressants and that
her symptoms were controlled. Tr. 212. On July 13, 2005, when she was seen for follow-up
regarding her medication, Plaintiff reported to Dr. Patterson that she was “feeling good” that day and
was doing “excellent” in regard to her depression. Tr. 209. On August 23, 2005, Plaintiff reported
that she was “not really anymore depressed, but [was] just getting extremely nervous.” Tr. 208. On
November 11, 2005, Dr. Patterson reported that Plaintiff was doing “excellent” in regard to her
depression and that Plaintiff denied any complaints or problems. Tr. 205. As considered by the ALJ,
Dr. Patterson reported, on April 19, 2006, that Plaintiff had been “excellent for an extended period
of time on her meds, but she said all of a sudden her depression [had] been getting the best of her.”
Dr. Patterson further reported on this date that, after he discussed the situation with Plaintiff, he felt
that Plaintiff had “a hold on things.” Tr. 17, 189. On May 9, 2006, Dr. Patterson reported that

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Plaintiff was doing better since her Pexeva was increased. Tr. 188. In June 2006, it was reported that
Plaintiff’s COPD symptoms improved with IV solu-Medrol, nebulizers and oxygen; that she
responded to treatment quickly; and that Plaintiff felt much improvement, “particularly with the
nebulizer treatments.” Tr. 224. On August 14, 2006, Dr. Patterson reported that Plaintiff was doing
well on her medication. Tr. 403. On September 12, 2006, Plaintiff told Dr. Patterson that her
medications helped her. Tr. 397. On August 28, 2007, Carl Blatt, Jr., M.D., reported that Plaintiff
was suffering from “transient constipation” and that Plaintiff had “shown significant improvement by
being placed on FiberCon.” Tr. 424-25. On September 21, 2007, Dr. Patterson reported that Plaintiff
“felt much improved” after they “spent a good 30 minutes talking about various issues and it really
made a difference.” Tr. 364. On October 9, 2007, Dr. Patterson noted that Plaintiff’s depression was
“much more controlled.” Tr. 359. Dr. Edwards reported, on December 26, 2007, that Plaintiff’s
bipolar disorder was stable. Tr. 492. Conditions which can be controlled by treatment are not
disabling. See Davidson v. Astrue, 578 F.3d 838, 846 (8th Cir. 2009); Medhaug v. Astrue, 578 F.3d
805, 813 (8th Cir. 2009); Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (holding that if an
impairment can be controlled by treatment, it cannot be considered disabling); Estes v. Barnhart, 275
F.3d 722, 725 (8th Cir. 2002); 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). The court finds,
therefore, that the ALJ properly considered the extent to which Plaintiff’s conditions were controlled
by medication and treatment and that substantial evidence supports the ALJ’s decision in this regard.
Second, the ALJ considered the objective medical evidence. Tr. 18. In this regard, Edward
J. O’Brien, M.D., reported on February 12, 2006, that a “Chest PA/LAT” showed infiltration in the
right middle lobe, no consolidation or pleural fluid, and normal cardiac and mediastinal contours. Dr.

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O’Brien also reported that Plaintiff had COPD with scattered fibrosis and that there was no “essential
change from 12/4/01.” Tr. 244. A February 14, 2006 chest imaging report states that no focal
infiltrate or consolidation was seen; that there was no pleural effusion or pneumothorax; that the heart
size was unremarkable; and that the impression was no acute pulmonary process. Tr. 295. A June
13, 2006 Computed Tomography Finalized Consultation Report for a CT of the thorax states that
Plaintiff may have had a small thyroid nodule. In regard to the abdomen, this report states that
Plaintiff had “mild fatty infiltration of the liver”; that the spleen was not enlarged: and that otherwise
the exam was unremarkable. In regard to the pelvis, this report states that Plaintiff may have had a
cyst on the right ovary. Tr. 177-80. A June 19, 2006 CT scan showed Plaintiff had COPD; that
Plaintiff did not have pleural effusions; that her heart size was normal; and that Plaintiff’s condition
had “slightly progressed” since the February 2006 scan. Tr. 231. An August 31, 2006 pathology
report states that Plaintiff had “[m]ildly hypercellular bone marrow,” “[d]iffuse, mild reticulin
fibrosis,” and “[m]ildly increased stainable iron stores.” Tr. 408-10. Additionally, the results of a
September 14, 2006 bladder ultrasound were unremarkable. Tr. 436.
Plaintiff had a series of chest x-rays from March 16, 2007, through March 22, 2007, while
she was hospitalized for hernia repair. A March 16, 2007 chest x-ray showed “no acute pulmonary
process.” Tr. 347. A March 19, 2007 chest x-ray report states that Plaintiff had “hazy basilar
infiltrates and pleural effusions” and that there was “[s]ome improvement in one day with less
pulmonary vascular congestion in the mid-lungs.” Tr. 344. An x-ray performed the next day, March
20, 2007, showed “some improvement.” Tr. 343. A chest x-ray report, dated March 22, 2007, states
that there was “decreased congestion and perihilar and peripheral infiltration.” Tr. 342. An Imaging
Services Report, dated August 24, 2007, states that Plaintiff did not have pleural effusion; that her
liver, spleen, pancreas, adrenal glands, and kidneys were all unremarkable; that Plaintiff did have

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diffuse hypodensity in the liver, consistent with fatty infiltration; that Plaintiff did not have bowel
obstruction, free air, fluid collection, focal acute inflammatory process, mass, or adenopathy in the
abdomen or pelvis; that there were post-op changes in the abdomen; and that, other than what was
noted, the CT of Plaintiff’s abdomen was negative. Tr. 427-34. The report from a September 4, 2007
chest x-ray states that the exam was a follow-up to an abdominal CT which showed a nodule; that
the density appeared smaller; that it was not completely resolved; and that an exam should be
conducted every three to six months. Tr. 426. A report, dated January 16, 2008, states that Plaintiff
had a CT of the head because she had “[h]eadache following [a] fall” and that Plaintiff did not have
acute intracranial abnormalities. Tr. 512. See Polaski, 739 F.2d at 1322 (“The absence of an objective
medical basis which supports the degree of severity of subjective complaints alleged is [] one factor
to be considered in evaluating the credibility of the testimony and complaints.”). As such, the court
finds that the ALJ’s consideration of the objective medical evidence upon addressing Plaintiff’s
credibility is based on substantial evidence and that it is consistent with the Regulations and case law.
Third, the ALJ considered that Plaintiff was hospitalized only once for her COPD, from June
19, 2006, through June 21, 2006. Tr. 18. Plaintiff also testified that she took ibuprofen for her ankle
pain. Indeed, after August 2008 Plaintiff did not undergo treatment for her ankle or ankle pain. Tr.
36-37, 44. Also, as stated above, Plaintiff took FiberCon for constipation. Tr. 424-25. Where a
plaintiff has not been prescribed any potent pain medication, an ALJ may properly discount the
plaintiff’s complaints of disabling pain. Clark v. Shalala, 28 F.3d 828, 831 n.4 (8th Cir. 1994);
Benskin, 830 F.2d at 884 (holding that treatment by hot showers and taking dosages of Advil and
aspirin do not indicate disabling pain); Cruse v. Bowen, 867 F.2d 1183, 1187 (8th Cir. 1989) (holding
that minimal consumption of pain medication reveals a lack of disabling pain); Rautio v. Bowen, 862
F.2d 176, 179 (8th Cir. 1988) (failure to seek aggressive treatment and limited use of prescription

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medications is not suggestive of disabling pain). Moreover, seeking limited medical treatment is
inconsistent with claims of disabling pain. Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003)
(“[T]he ALJ concluded, and we agree, that if her pain was as severe as she alleges, [Plaintiff] would
have sought regular medical treatment.”); Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997)
(“[Claimant’s] failure to seek medical assistance for her alleged physical and mental impairments
contradicts her subjective complaints of disabling conditions and supports the ALJ’s decision to deny
benefits.”); Nelson v. Sullivan, 946 F.2d 1314, 1317 (8th Cir. 1991); James, 870 F.2d at 450. The
court finds that the ALJ’s decision in this regard is supported by substantial evidence and that it is
consistent with the Regulations and case law.
Fourth, the ALJ considered Plaintiff’s daily activities. Tr. 16-17. Plaintiff reported that she
talked on the telephone, watched television, prepared dinner, did laundry, washed dishes, sewed,
shopped, went to church, and could count change, pay bills, manage her savings account, and use a
check book. Tr. 145-47.

Plaintiff also cared for her grandchildren. Tr. 280-81, 390, 403.

Additionally, Dr. Patterson reported, on April 4, 2006, that, when Plaintiff complained of back pain,
she said she had moved households and had done a lot of extra work. Tr. 191. While the undersigned
appreciates that a claimant need not be bedridden before he can be determined to be disabled,
Plaintiff's daily activities can nonetheless be seen as inconsistent with her subjective complaints of a
disabling impairment and may be considered in judging the credibility of her complaints. Eichelberger,
390 F.3d at 590 (holding that the ALJ properly considered that the plaintiff watched television, read,
drove, and attended church upon concluding that subjective complaints of pain were not credible);
Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001); Onstead, 962 F.2d at 805; Murphy v.
Sullivan, 953 F.2d 383, 386 (8th Cir. 1992); Benskin, 830 F.2d at 883; Bolton v. Bowen, 814 F.2d
536, 538 (8th Cir. 1987). Indeed, the Eighth Circuit holds that allegations of disabling “pain may be

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discredited by evidence of daily activities inconsistent with such allegations.” Davis v. Apfel, 239 F.3d
962, 967 (8th Cir. 2001) (citing Benskin, 830 F.2d at 883). “Inconsistencies between [a claimant’s]
subjective complaints and [his] activities diminish her credibility.” Goff, 421 F.3d at 792 (citing
Riggins v. Apfel, 177 F.3d 689, 692 (8th Cir. 1999)). See also Mouser v. Astrue, 545 F.3d 634, 638
(8th Cir. 2008) (“Although the ALJ may have overstated [the claimant's] daily activities, the record
indicates that [the claimant] is generally able to care for himself.”); Haley v. Massanari, 258 F.3d 742,
748 (8th Cir. 2001); Nguyen v. Chater, 75 F.3d 429, 439-41 (8th Cir. 1996) (holding that a
claimant’s daily activities, including visiting neighbors, cooking, doing laundry, and attending church,
were incompatible with disabling pain and affirming denial of benefits at the second step of analysis).
The court finds, therefore, that the ALJ properly considered Plaintiff’s daily activities upon choosing
to discredit her complaints of debilitating pain. The court further finds that substantial evidence
supports the ALJ’s decision in this regard.
Fifth, as considered by the ALJ, Plaintiff had a history of non-compliance. Tr. 18-19. In this
regard, as considered by the ALJ, Plaintiff’s physicians advised her to stop smoking, but she
continued to smoke. Tr. 17-18, 38. In particular, Dr. Patterson reported, on May 27, 2005, that he
told Plaintiff that if she did not stop smoking it would “greatly shorten her life.” Tr. 212. Dale J.
Brewer, D.O., reported, on February 3, 2006, when Plaintiff complained of a cough and chest
congestion, that Plaintiff continued to smoke against medical advice. Tr. 201. On February 5, 2007,
Plaintiff told Dr. Patterson that she had run out of her medication and went into “her manic phase for
awhile because she ran out of her medications.” Dr. Patterson told Plaintiff that “this [was] very
dangerous” and Plaintiff responded that she knew that. Tr. 378. When Plaintiff was seen for follow
up regarding her lungs, on February 16, 2006, Dr. Brewer noted that Plaintiff continued to smoke.
On March 3, 2006, Dr. Brewer reported that Plaintiff received electrical shock therapy for smoking

15

cessation; that Plaintiff stated that she was doing a “lot better and [was] not coughing as much”; and
that Plaintiff was not short of breath. Tr. 195. On February 15, 2007, Dr. Patterson warned Plaintiff
about the damage that smoking was causing. Tr. 377. On March 18, 2007, Darrell Pitt, D.O.,
reported, among other things, that Plaintiff had COPD with tobacco dependency. Tr. 327-28. On May
31, 2007, Dr. Patterson reported that he had “a long talk about smoking” with Plaintiff; that he told
her smoking was “the biggest problem she [had]”; that Plaintiff said she was down to about seven
cigarettes a day; that Dr. Patterson told her that until she got “to zero it [was] not going to really
help with her symptomology.” Tr. 374. On July 12, 2007, when Plaintiff presented with cough and
congestion, Dr. Patterson reported that he told Plaintiff that “if she [did not] quit smoking that this
[was] definitely going to cause severe consequences.” Tr. 369. On October 9, 2007, when Plaintiff
was seen for cough, congestion, headache, and somatic dysfunction, it was reported that the doctor
had “been telling her for an extended period of time that, if she [did not] quit smoking she [was]
going to suffer severe consequences.” Tr. 359. On April 29, 2008, it was reported that Plaintiff was
smoking a half pack of cigarettes a day. Tr. 463. Also, Plaintiff reported, on May 29, 2008, that she
had taken herself off all her medications on April 1, 2008, and that she had “been doing well with no
mania with her bipolar and she also took herself off her thyroid medication.” Tr. 463. Dr. Edwards
reported, on April 18, 2008, that Plaintiff had been forgetting to take her medications and that she
took them “whenever.” Tr. 485. A claimant’s failure to comply with prescribed medical treatment
and lack of significant medical restrictions is inconsistent with complaints of disabling pain.
Eichelberger, 390 F.3d at 589 (citing Brown v. Chater, 87 F.3d 963, 965 (8th Cir. 1996)); Wheeler,
224 F.3d at 895(citing Kisling, 105 F.3d at 1257) (holding that impairments which are controllable
or amenable to treatment including certain respiratory problems, do not support a finding of disability,
and failure to follow a prescribed course of remedial treatment, including cessation of smoking,

16

without good reason is grounds for denying an application for benefits). As such, the court finds that
the ALJ properly considered Plaintiff’s non-compliance and that the ALJ’s decision, in this regard,
is supported by substantial evidence.
Sixth, as considered by the ALJ, Plaintiff testified that she had a driver’s license and did not
drive. The record does not reflect that any physician imposed restrictions on her in this regard. Tr.
17, 39. A record, such as that in the matter under consideration, which does not reflect physicianimposed restrictions suggests that a claimant’s restrictions in daily activities are self-imposed rather
than by medical necessity. See Zeiler, 384 F.3d at 936 (“[T]here is no medical evidence supporting
[the claimant’s] claim that she needs to lie down during the day.”); Fredrickson v. Barnhart, 359 F.3d
972, 977 n.2 (8th Cir. 2004) (“There is no evidence in the record that [the claimant] complained of
severe pain to his physicians or that they prescribed that he elevate his foot or lie down daily.”). The
court finds that the ALJ’s decision in this regard is supported by substantial evidence and that it is
consistent with the Regulations and case law.
Seventh, the ALJ considered that, in November 2006, Dr. Patterson reported that Plaintiff’s
depression was being controlled “but that she had added stress related to family matters.” Tr. 18.
Additionally, when Plaintiff told Dr. Patterson, on August 23, 2005, that she was “getting extremely
nervous,” she said she was dealing with family issues. Dr. Patterson increased Plaintiff’s Xanax on
this date and said that “when things settle[d] down,” Plaintiff could go back to “BID dosing.” Tr.
208. Also, on May 9, 2006, when Dr. Patterson noted that Plaintiff was doing better, he also noted
that Plaintiff had “so many things going on in her life that it [was] hard to see straight.” Tr. 188. On
June 6, 2006, although he reported that a “lot of Plaintiff’s problems [were] more [] chemical in
nature,” Dr. Patterson also reported that he discussed with Plaintiff “various issues in her life”; that
a “lot of things finally caught up with [Plaintiff]”; and that Plaintiff had been “stressed out purchasing

17

a new home and dealing with some problems with her children.” Tr. 185. Situational depression is
not disabling. See Dunahoo, 241 F.3d at 1039-40 (holding that depression was situational and not
disabling because it was due to denial of food stamps and workers compensation and because there
was no evidence that it resulted in significant functional limitations). In conclusion, the court finds
that the ALJ’s credibility determination is based on substantial evidence and that it is consistent with
the Regulations and case law.
B.

Dr. Patterson’s Letters:
Plaintiff contends that the ALJ did not properly consider letters written by Dr. Patterson. Dr.

Patterson wrote letters, dated November 16, 2007, November 26, 2008, February 16, 2009, and
March 20, 2009. Tr. 535-38. In the November 2007 letter, Dr. Patterson opined that Plaintiff’s
medical and mental conditions made the possibility of her holding gainful employment non-existent.
Tr. 535. The November 2008 letter states that Plaintiff was “not employable” and that her physical
and emotional conditions made “it difficult for her to obtain gainful employment.” Tr. 536. The
February 2009 letter states that Plaintiff was “totally unable to hold any type of gainful employment.”
Tr. 537. The May 2009 letter states that Dr. Patterson did not think Plaintiff was employable. Tr.
538.
First, only the 2007 letter predated the ALJ’s opinion. Thus, the ALJ could not have
considered the other letters. Second, despite the fact that Dr. Patterson’s November 2007 letter was
not introduced into evidence at the hearing and, thus, was not submitted to the ALJ, Plaintiff’s
attorney acknowledged at the hearing that the record was complete. Tr. 26.
Third, the ALJ’s decision reflects that he did consider Dr. Patterson’s records and that he
concluded that these records did not reflect that Plaintiff’s conditions were likely to cause symptoms
with the presence of an uncontrolled, disabling impairment. Tr. 18. The ALJ considered that Dr.

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Patterson frequently reported that Plaintiff’s symptoms were under control and that medication
helped; that when he gave Plaintiff a work excuse in May 2006, he said she needed more time to take
care of a “very pressing family issue”; that, in June 2006, Plaintiff told Dr. Patterson that she felt
better when she was working and that she enjoyed working; and that Dr. Patterson reported that he
felt Plaintiff would be helped by returning to work. Tr. 17-18. Thus, to the extent Dr. Patterson
stated in any of his letters that Plaintiff was unable to work, such statements were inconsistent with
Dr. Patterson’s own records. “A treating physician's opinion is given controlling weight if it ‘is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [a claimant's] case record.’” Tilley v. Astrue, 580
F.3d 675, 679 (8th Cir. 2009) (quoting 20 C.F.R. § 404.1527(d)(2) (2000)). See also Heino v.
Astrue, 578 F.3d 873, 880 (8th Cir. 2009); Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000).
A treating physician’s opinion, however, is not given controlling weight where it is inconsistent with
the physician’s own records. See 20 C.F.R. § 404.1527(d)(3) (providing that more weight will be
given to an opinion when a medical source presents relevant evidence, such as medical signs, in
support of his or her opinion); Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir.2009) (“It is
permissible for an ALJ to discount an opinion of a treating physician that is inconsistent with the
physician's clinical treatment notes.”); Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007)
(holding that a treating physician’s opinion does not automatically control or obviate need to evaluate
the record as whole and upholding the ALJ’s decision to discount the treating physician’s
medical-source statement where limitations were never mentioned in numerous treatment records or
supported by any explanation); Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (holding that
where a treating physician’s notes are inconsistent with his or her RFC assessment, controlling weight
is not given to the RFC assessment); Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (holding

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that a treating physician’s opinion is given controlling weight “if it is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial
evidence”).
Fourth, Plaintiff submitted Dr. Patterson’s letters to the Appeals Council.2 The Appeals
Council considered the record as well as additional evidence submitted by Plaintiff and concluded that
the additional evidence did not provide a basis for changing the ALJ’s decision. Tr. 1-5. Fifth,
Plaintiff’s insured status expired December 31, 2008. Thus, to the extent Dr. Patterson’s February
and March 2009 letters address Plaintiff’s condition after that date, they are not relevant. Tr. 14,173,
537-38. Sixth, when the Appeals Council denies review, finding the new evidence was not material
or did not detract from the ALJ’s conclusion, a court does not evaluate the Appeal’s Council decision
to deny review; rather, the court considers whether substantial evidence on the record as a whole,
including the new evidence, supports the ALJ’s decision. Van Vicle v. Astrue, 539 F.3d 825, 828 (8th
Cir. 2008).
Seventh, Dr. Patterson’s letters of November 2007 and 2008 address Plaintiff’s condition
through October 10, 2008. Tr. 535-36. The record does not reflect, however, that Dr. Patterson
actually treated Plaintiff after October 17, 2007. Eighth, as discussed above in regard to Plaintiff’s
credibility, objective medical records do not reflect that Plaintiff’s conditions were disabling. See

2

The Appeals Council will consider new and material evidence where it relates to
the period on or before the date of the ALJ hearing decision. 20 C.F.R. § 404.970(b). New and
material evidence submitted to the Appeals Council which relates to the period before the date of
the ALJ's decision becomes part of the administrative record. Davidson v. Astrue, 501 F.3d 987,
990 (8th Cir. 2007); Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000). To be material,
the evidence must be “non-cumulative, relevant, and probative of the claimant’s condition for the
time period for which benefits were denied” and must not concern “subsequent deterioration of a
previously non-disabling condition.” Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997).
See also Rehder v. Apfel, 205 F.3d 1056, 1061 (8th Cir. 2000).
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Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995) (citing Matthews v. Bowen, 879 F.2d
422, 424 (8th Cir. 1989) (holding that opinions of treating doctors are not conclusive in determining
disability status and must be supported by medically acceptable clinical or diagnostic data); 20 C.F.R.
§ 404.1527(d)(3) (providing that more weight will be given to an opinion when a medical source
presents relevant evidence, such as medical signs, in support of his or her opinion).
Ninth, Dr. Patterson’s November 2007 and November 2008 letters purport to rely on the
same treatment records which the ALJ considered. Thus, these letters do not create a reasonable
likelihood, were the court to remand this matter, that such remand would result in an award of
benefits. See Rehder, 205 F.3d at 1061. Tenth, to the extent Dr. Patterson opined that Plaintiff could
not work and was unemployable, a treating physician’s opinion that a claimant is not able to return
to work “involves an issue reserved for the Commissioner and therefore is not the type of ‘medical
opinion’ to which the Commissioner gives controlling weight.” Ellis v. Barnhart, 392 F.3d 988, 994
(8th Cir. 2005). The court finds, therefore, that the ALJ gave proper weight to Dr. Patterson’s letters
and that the ALJ’s decision, in this regard, is supported by substantial evidence on the record as a
whole.

C.

The Opinion of Dr. Edwards:
Dr. Edwards stated in a letter, dated January 4, 2008, that he had been seeing Plaintiff for the

past several months; that Plaintiff’s “main condition actually center[ed] around her bipolar disorder
which [had] a very strong level of anxiety component to it”; that although Plaintiff’s bipolar disorder
was “relatively well controlled,” she had breakthrough symptoms; that Plaintiff’s depressive

21

symptoms affected her ability to hold a job; that her COPD limited her ability to perform strenuous
activity; and that he was concerned that Plaintiff’s conditions “may affect her ability to hold down a
job.” Tr. 413. Plaintiff contends that the ALJ did not give proper weight to Dr. Edwards opinion,
as stated in this letter.
First, to the extent Dr. Edwards opined that Plaintiff was unable to work, as stated above,
such a finding is for the ALJ to make. See Ellis, 392 F.3d at 994. Second, the ALJ did take into
consideration the limitations which Dr. Edwards imposed on Plaintiff regarding her inability to engage
in strenuous activity due to her COPD and her ability to hold a job due to depressive symptoms. In
this regard, the ALJ found that Plaintiff could engage in light work with less than moderate exposure
to fumes, odors, dusts, and gases; understanding, remembering, and carrying out simple instructions
and non-detailed tasks; and no constant, regular contact with the general public. Tr. 15-16. See
Choate v. Barnhart, 457 F.3d 865, 869-70 (8th Cir. 2006) (holding that the limitations imposed by
the ALJ as reflected in the claimant’s RFC demonstrating that the ALJ gave some credit to the
opinions of the treating physicians”); Ellis, 392 F.3d at 994 (“In assessing [the claimant’s] RFC, the
ALJ determined that [the claimant] could sit for a total of six hours and stand for a total of two hours,
but was limited to sedentary work. This in itself is a significant limitation, which reveals that the ALJ
did give some credit to [the treating doctor’s] medical opinions.”).
Third, the ALJ did consider Dr. Edwards’s treatment records. As discussed above, the
opinion of a treating doctor is not controlling where his treatment notes are inconsistent with his
conclusions regarding the severity of a claimant’s symptoms. See 20 C.F.R. § 404.1527(d)(3);
Hacker, 459 F.3d at 937. In this regard, the ALJ considered that on December 26, 2007, Dr.
Edwards reported that Plaintiff’s bipolar disorder was “actually pretty stable.” Dr. Edwards also
reported on this date that Plaintiff was alert and in not acute distress; that her ENT was intact without

22

infection; that her lungs had course sounds with wheezing; that her extremities were warm without
clubbing; that she had tenderness in the left elbow and mid-thoracic region along the rib heads; and
that Plaintiff’s diagnosis included left elbow tendinitis, thoracic pain, bipolar disorder, and “COPD
exacerbation.” Tr. 18, 492. Dr. Edwards saw Plaintiff on April 18, 2008, after she had a recent fall.
Dr. Edwards reported on this date that Plaintiff was awake, alert, and in no acute distress; that her
heart and lungs were clear; that her extremities were warm without clubbing, cyanosis, or edema; and
that she had bruising on her elbows and decreased ROM of the left shoulder. Tr. 485. The ALJ also
considered that, on August 11, 2008, Dr. Edwards reported that Plaintiff said she was forgetting
things and not sleeping well. Tr. 482. When Plaintiff presented to Dr. Edwards nine days later, on
August 20, 2008, she did so complaining of cough and phlegm. On this date Dr. Edwards noted that
Plaintiff was awake, alert, and in no acute distress and he did not otherwise address Plaintiff’s mental
state. Tr. 480. As such, the court finds that the ALJ gave proper weight to Dr. Edwards’s opinion
and that the ALJ’s decision, in this regard, is supported by substantial evidence.
D.

Plaintiff’s RFC:
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)).

23

The ALJ in the matter under consideration found that Plaintiff has the RFC for light work and
that, as such, she can lift no more than twenty pounds occasionally and ten pounds frequently; that
she can occasionally stoop, bend, crouch, or climb stairs and ramps; that she can never crawl or climb
ladders, ropes or scaffolds. 20 C.F.R. § 404.1567(b). He further found that she should avoid
moderate exposure to fumes, odors, dusts, and gases; that she can understand, remember, and carry
out at least simple instructions and non-detailed tasks; and that she can not work in a setting which
included constant, regular contact with the general public. Tr. 15-16. Plaintiff contends that this RFC
finding is not supported by substantial evidence because it is not supported by the medical records;
because it does not account for her inability to work with others, concentrate, handle stress, and
remember facts; and because it does not account for her COPD.
First, 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 Tindell’s credible limitations in his RFC assessment, and
the ALJ’s conclusions are supported by substantial evidence in the record.”). Pursuant to this
requirement, the ALJ found that Plaintiff’s subjective complaints were not fully credible. The court
has found, above, that the ALJ’s credibility determination is based on substantial evidence.
Second, despite Plaintiff’s contention to the contrary, the ALJ did take into consideration
Plaintiff’s credible limitations, including those related to her COPD and mental disorders. In this
regard he restricted Plaintiff’s ability to stoop, bend, crouch, and climb, her exposure to fumes, odors,
dusts, and gases, her being limited to simple instructions and non-detailed tasks, and her not working
in a setting with constant contact with the public.

24

Third, while 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. Upon determining Plaintiff’s RFC the ALJ considered the medical evidence, as
discussed above in regard to Plaintiff’s credibility and the opinions of her doctors.
Fourth, the ALJ’s determination of Plaintiff’s RFC is precise as it directly addresses her
restrictions and the requirements of light work. The ALJ specifically incorporated further limitations
on Plaintiff’s RFC based on the medical evidence. See McKinney, 228 F.3d at 863 (“The
Commissioner 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).
Fifth, to the extent that Plaintiff contends that the ALJ’s RFC determination is not supported
by substantial evidence, as discussed above, it was reported that her mental disorders were well
controlled with medication. To the extent the ALJ found she could have some contact with the public
or others, as discussed above, Plaintiff shopped and attended church and took care of her
grandchildren, indicating she could get along with others. In regard to Plaintiff’s COPD, as discussed
above in regard to her noncompliance, when Plaintiff was hypnotized for smoking cessation, she
smoked less and felt better. Further, in regard to her COPD, Plaintiff was hospitalized only once for

25

this condition. In any case, as discussed above, the ALJ accounted for Plaintiff’s COPD by imposing
limitations, including her exposure to irritants.
Sixth, in regard to Plaintiff’s allegation that the ALJ improperly assessed the severity of her
mental conditions because he found she did not have any episodes of decompensation, Plaintiff’s
medical records do not reflect that she had such an episode. Indeed, Plaintiff testified that she “lost
it right there in the store.” Tr. 46. The ALJ, however, found Plaintiff not fully credible and that her
symptoms were exaggerated. As discussed above, the court has found that the ALJ’s credibility
determination is based on substantial evidence.
Seventh, to the extent Plaintiff suggests that the ALJ did not address her medical records in
sufficient detail, an ALJ’s failure to cite specific evidence does not indicate that such evidence was
not considered. See Moore ex rel. Moore v. Barnhart, 413 F.3d 718, 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.”); Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir. 1995). In conclusion, the court finds
that the ALJ’s RFC determination is consistent with the medical evidence; that the ALJ took into
consideration all of Plaintiff’s credible limitations; that the ALJ’s RFC determination is based on
substantial evidence on the record as a whole; and that it is consistent with the Regulations and case
law.
The ALJ submitted a hypothetical to a VE which included all of Plaintiff’s limitations which
the ALJ found credible. An ALJ posing a hypothetical to a VE is not required to include all of a
claimant’s limitations, but only those which he finds credible. Martise v. Astrue,641 F.3d 909, 927
(8th Cir. 2011) (“The ALJ's hypothetical question to the vocational expert needs to include only those
impairments that the ALJ finds are substantially supported by the record as a whole.”) (quoting
Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006)); Guilliams, 393 F.3d at 804 (holding that a

26

proper hypothetical sets forth impairments supported by substantial evidence and accepted as true
by the ALJ); Gilbert v. Apfel, 175 F.3d 602, 604 (8th Cir. 1999) (“In posing hypothetical questions
to a vocational expert, an ALJ must include all impairments he finds supported by the administrative
record.”).
The VE testified that there was work available in the local and national economy, in significant
numbers, which a person of Plaintiff’s age, education, work history, and RFC could perform. Tr. 5457. Where a hypothetical question precisely sets forth all of the claimant’s physical and mental
impairments, a VE’s testimony constitutes substantial evidence supporting the ALJ’s decision.
Martise, 641 F.3d at 927 (“Based on our previous conclusion ... that ‘the ALJ's findings of [the
claimant’s] RFC are supported by substantial evidence,’ we hold that ‘[t]he hypothetical question was
therefore proper, and the VE's answer constituted substantial evidence supporting the
Commissioner’s denial of benefits.’”) (quoting Lacroix, 465 F.3d at 889); Robson v. Astrue, 526 F.3d
389, 392 (8th Cir. 2008) (holding that a VE’s testimony is substantial evidence when it is based on
an accurately phrased hypothetical capturing the concrete consequences of a claimant’s limitations);
Wingert v. Bowen, 894 F.2d 296, 298 (8th Cir. 1990). Thus, the court finds that the ALJ’s
determinations that there is work available in substantial numbers which Plaintiff can perform is
supported by substantial evidence. As such, the court finds that the ALJ’s conclusion that Plaintiff
is not disabled is supported by substantial evidence.
IV.
CONCLUSION
For the reasons set forth above, the court finds that substantial evidence on the record as a
whole supports Commissioner’s decision that Plaintiff is not disabled.
Accordingly,

27

IT IS HEREBY ORDERED that the relief sought by Plaintiff in her Complaint and Brief
in Support of Complaint is DENIED; Docs. 1, 14,
IT IS FURTHER ORDERED that a separate judgment be entered incorporating this
Memorandum Opinion.
/s/Mary Ann L. Medler
MARY ANN L. MEDLER
UNITED STATES MAGISTRATE JUDGE

Dated this 3rd day of February, 2012.

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