Tobar v. Astrue

Filing 26

MEMORANDUM - For the reasons set forth above, the court finds that the decision of the ALJ is supported by substantial evidence in the record as a whole and is consistent with the applicable law. The decision of the Commissioner of Social Security is affirmed. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 10/17/12. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMEECIA1 TOBAR,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 4:11 CV 1939 DDN

MEMORANDUM
This action is before the court for judicial review of the final
decision

of

defendant

Commissioner

of

Social

Security

denying

the

application of plaintiff Jameecia Tobar for child’s disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et
seq. and for supplemental security income under Title XVI, 42 U.S.C. §
et seq.

1381,

The parties have consented to the exercise of plenary

authority by the undersigned United States Magistrate Judge pursuant to
28 U.S.C. § 636(c).

For the reasons set forth below, the court affirms

the decision of the Administrative Law Judge (ALJ).

I. BACKGROUND
Plaintiff was born in 1991.

On April 5, 2010, plaintiff’s legal

guardian filed applications on her behalf, alleging disability since
September 1, 1998, due to learning disabilities and speech problems.
(Tr. 106-116, 176.) Her claims were denied initially and after a hearing
before an ALJ.

(Tr. 11-19, 42-52.)

On October 5, 2011, the Appeals

Council denied plaintiff's request for review.

(Tr. 1-3.)

Thus, the

decision of the ALJ stands as the final decision of the Commissioner.

II. EDUCATIONAL AND OTHER HISTORY

1

The administrative record shows plaintiff’s correct first name
is “Jameecia.” Therefore, the pleadings are amended as necessary to
show the correct spelling of her first name.

On May 7, 2004, when plaintiff was 13 years old, staff at her school
district administered the Wechsler Individual Achievement Test (WIAT-II).
Plaintiff had a reading composite score of 55, mathematics composite
score of 66, and writing composite score of 64.
On

May

12,

2004,

school

district

Stanford-Binet Intelligence Scale.

(Tr. 204.)

staff

administered

the

Plaintiff scored a full scale IQ

score of 53, verbal IQ score of 58, and nonverbal IQ score of 52.

School

district staff also administered the Wechsler Intelligence Scale for
Children (WISC-III).

Plaintiff scored a full scale IQ score of 49, a

verbal IQ score of 56, and a performance IQ score of 49.

School district

staff noted that plaintiff cooperated with the testing process and
exhibited good effort, perseverance, and task focus, and opined that the
results of the assessments were believed to be valid estimates of her
current functioning level.

The staff opined that the results of the

testing were consistent with the criteria for identifying plaintiff with
mental retardation.

(Tr. 201-05.)

On April 3, 2009, Alison Burner, M.A., conducted a consultative
psychological evaluation.

Ms. Burner noted that plaintiff had an

unremarkable medical history.

She administered the Wechsler Adult

Intelligence Scale, Third Edition (WAIS-III).

Plaintiff scored a full

scale IQ score of 76, verbal IQ score of 75, and performance IQ score of
81.

Ms. Burner opined with a 95% confidence level that plaintiff's IQ

fell within the borderline range of intellectual functioning.

She noted

weaknesses in numerical reasoning and short-term memory and a strength
in graphomotor speed. All other skills fell within the borderline range.
(Tr. 251-53.)
Ms. Burner considered the evaluation a valid estimate of plaintiff's
actual abilities and stated that plaintiff appeared to demonstrate
adequate motivation.
school

were

disability.
deficiency

the

She suggested that plaintiff's difficulties in

result

of

slow

learning,

rather

than

a

learning

She opined that plaintiff had no significant cognitive
that

would

preclude

obtaining

and

maintaining

gainful

employment and stated that plaintiff could obtain employment in line with
her intellectual functioning.

She opined that plaintiff might be

best-suited for non-complex manual labor or repetitive jobs and not
-2-

well-suited for work involving money management, such as the operation
of cash registers.

(Tr. 252-53.)

On March 14, 2011, plaintiff's counsel submitted interrogatories to
Ms. Burner, and Burner responded the following day.

Ms. Burner noted

that she did not review any records prior to examining plaintiff, as none
were submitted for her review. Ms. Burner stated that plaintiff's scores
on the WISC-III in 2004 and the WAIS-III in 2009 were statistically
significantly different, noting that plaintiff's test scores in the
former test placed plaintiff in the moderately mentally retarded range,
while the scores in the latter placed her in the borderline range of
intellectual functioning.

Similarly, Ms. Burner stated that plaintiff's

2004 Stanford-Binet score and 2009 WAIS-III score were statistically
significantly different.

She noted that the Stanford-Binet score was

slightly higher than the WISC-III score and fell in the moderate to mild
range of mental retardation.

(Tr. 273-80.)

Ms. Burner opined that there were several possible explanations for
the discrepancies in scores between the 2004 and 2009 testing.

She

opined that it was possible that one or all of the tests were not valid
or reliable, either because of poor cooperation or human error.
could not speak to the reliability of the tests.
"significant discrepancy" in the school records.
plaintiff

was

"initially

educationally

She

She also observed

Ms. Burner noted that

diagnosed"

with

a

learning

disability and language impairment in 2000, an educational diagnosis that
could not have been reached had her IQ scores fallen in the mentally
retarded range under government guidelines.

(Tr. 277-80.)

Ms. Burner further stated that plaintiff was initially granted
Social Security benefits for learning disability and speech problems in
2004.

She noted that mental retardation was apparently not alleged at

that time and was apparently not the reason for the allowance.

She

opined that if 2000 and 2003 IQ scores were available, they might have
indicated a pattern of a higher level of cognitive ability, with the
exception of the 2004 IQ scores.

Ms. Burner opined that the testing was

old enough that its protocol had been destroyed and could not be reviewed
to check scoring accuracy. She opined that the scores might not actually
be discrepant, noting that IQ scores can occur within a statistically
-3-

reliable range. Ms. Burner also opined that the discrepancy could result
from different adult and child versions of the tests.

Ms. Burner stated

that she did not read any portion of the IQ test to plaintiff.

She

stated that she had administered examinations, including IQ tests to
children, for over 20 years. (Tr. 277-80.)
In an Individualized Education Program (IEP) dated February 19,
2010, plaintiff was described as having "an educational diagnosis of
Intellectual Disabled" that affected her rate of learning, reading grade
level, reading comprehension, written expression, math concepts and
computation,

and

completion

of

classroom

and

homework

assignments.

Plaintiff learned best when information was broken into small steps and
mastered before moving to the next step.

(Tr. 137-38.)

Plaintiff participated in a work program at her high school in which
she had janitorial, food preparation, clerical, and kitchen duties.
Plaintiff was able to work at all of those work sites with few prompts
required to keep her on task.

Once she learned a skill, she could

perform it with little supervision.

Plaintiff learned new skills when

provided with extensive repetition in a supported work environment.

She

required repetition of skills not provided by competitive work training
regiments.

It was noted plaintiff would need support in a normal work

environment to avoid being taken advantage of or exploited.

She had not

demonstrated the potential hazards of some social situations. (Tr. 139.)
At that time, the IEP concluded her diagnosis of mental retardation
appeared appropriate, and no further testing was required.

The IEP

listed plaintiff’s employment goal as employment in a nursing home,
veterans' home, or food service with support from the Division of
Vocational Rehabilitation.

(Tr. 139.)

An IEP dated May 19, 2010, described plaintiff similarly.

The IEP

indicated functional difficulties in completing forms or applications
independently, budgeting money, and counting coins. Plaintiff was unable
to independently access public transportation in the community or work
sites.

Plaintiff

was

self-motivated,

but

encouragement, and repetition at each work site.
her

diagnosis

of

mild

mental

retardation

required

support,

The IEP team concluded

(intellectually

disabled)

remained appropriate, no further testing was required, and academic
-4-

skills in reading, written expression, and math were below grade level
consistent with her diagnosis of intellectually disabled.
an excellent candidate for supportive employment.

She would be

The IEP stated

plaintiff’s employment goal was obtaining competitive employment with
supports in the area of food service.

(Tr. 193-96, 208-09, 216.)

A Psychiatric Review Technique form was completed by Stephen S.
Scher, Ph.D., on June 15, 2010, when plaintiff was 19 years old.

It

reflected mild limitations in activities of daily living and maintaining
social

functioning,

and

moderate

concentration, persistence, or pace.

difficulties

in

maintaining

Plaintiff received Special School

District services while attending high school for learning disabilities
and speech impairment.
alleged.

No other psychiatric issues were noted or

Plaintiff's alleged functional limitations were found to be

less than credible. Plaintiff was capable of following at least two-step
instructions, which would be easier for plaintiff if they were verbal.
Plaintiff

was

capable

of

performing

limitation of social interactions.

simple

work

tasks

and

had

no

(Tr. 254-64.)

Dr. Scher also completed a Mental RFC questionnaire the same day.
He indicated plaintiff had moderate limitations in the ability to
understand or remember detailed instructions, to carry out detailed
instructions,

to

accept

instructions

and

respond

appropriately

to

criticism from supervisors, to respond appropriately to changes in the
work setting, and to set realistic goals or make plans independently of
others.

Dr. Scher opined that plaintiff retained the mental ability to

understand and remember simple instructions and to sustain attention to
complete simple repetitive tasks.
precluded.

Contact with the public was not

Plaintiff could adapt to routine changes and avoid workplace

hazards. (Tr. 266-68.)
Testimony at the Hearing
Plaintiff testified to the following at an administrative hearing
held on March 24, 2011.

She attended special education classes and

graduated from high school in 2010.
license.

She does not have a driver’s

She has academic difficulties in math, reading, and spelling.

She can take a telephone message with assistance.
-5-

She participated in

work study program at a grocery store for two years bagging groceries.
She does not have any physical problems.

She can prepare simple meals

such as sandwiches and canned soup with assistance.
any hobbies.

She can handle her own personal care.

She does not have
(Tr. 20-33.)

Jenifer Teixeira, a vocational expert (VE), testified in response
to a hypothetical question from the ALJ which outlined plaintiff's age,
education, and work experience.

The ALJ's hypothetical individual could

lift and carry 20 pounds occasionally and 10 pounds frequently.

The

individual could sit, stand, and walk with usual breaks for about six
hours in an eight-hour workday.
understanding,

remembering,

She was limited to jobs that involved

and

following

simple

instructions

and

directions in a work setting with no more than routine changes.

The

individual performed better with verbal than written instructions and,
if instructions were written, they had to be at an elementary school
level.

She would need repetition of instruction and supervision while

learning tasks, but once she learned a task, she could perform without
special supervision.

The hypothetical individual could not perform work

that required dealing with money, such as making change.

She could have

no more than rare contact with the public while on the job.

The VE

testified that this individual could return to perform other jobs
existing in significant numbers in the national economy, such as racker,
street cleaner, and bottling line attendant.
III.
On

April

plaintiff.

1,

2011,

(Tr. 36-38.)

DECISION OF THE ALJ

the

ALJ

issued

a

decision

unfavorable

to

The ALJ found that plaintiff had the severe impairments of

learning disabilities, borderline intellectual functioning, and obesity.
The ALJ found that plaintiff did not suffer from an impairment or
combination of impairments of a severity that meets or medically equals
the required severity of a listing.
The ALJ found that plaintiff retained the RFC to lift and carry 20
pounds occasionally and 10 pounds frequently.

Plaintiff could sit,

stand, and walk with usual breaks for about six hours in an eight-hour
workday.

She

was

limited

to

jobs

that

involved

understanding,

remembering, and following simple instructions and directions in a work
-6-

setting with no more than routine changes.

Plaintiff performed better

with verbal rather than written instructions, and if instructions were
written, they had to be at an elementary school level.

Plaintiff would

need repetition of instruction and supervision while learning tasks, but
once she learned a task, she could perform without special supervision.
She could not perform work that required dealing with money, such as
making change.

She could have no more than rare contact with the public

while on the job.
The ALJ further found that plaintiff could perform other jobs
existing in significant numbers in the national economy, such as racker,
street cleaner, and bottling line attendant. Consequently, the ALJ found
that plaintiff was not disabled within the meaning of the Act.

(Tr. 13-

20.)
IV.

GENERAL LEGAL PRINCIPLES

The court’s role on judicial review of the Commissioner’s final
decision is to determine whether the Commissioner’s findings comply with
the relevant legal requirements and is supported by substantial evidence
in the record as a whole.
Cir.

2009).

Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th

“Substantial evidence is less than a preponderance, but is

enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.”

Id.

In determining whether the evidence is

substantial, the court considers evidence that both supports and detracts
from the Commissioner's decision.

Id.

As long as substantial evidence

supports the decision, the court may not reverse it merely because
substantial evidence exists in the record that would support a contrary
outcome or because the court would have decided the case differently.
See Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove she is
unable to perform any substantial gainful activity due to a medically
determinable physical or mental impairment that would either result in
death or which has lasted or could be expected to last for at least
twelve

continuous

months.

42

U.S.C.

§§

423(a)(1)(D),

(d)(1)(A),

1382c(a)(3)(A); Pate-Fires, 564 F.3d 935, 942 (8th Cir. 2009).

A

five-step regulatory framework is used to determine whether an individual
-7-

qualifies for disability.

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4);

see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the
five-step process); Pate-Fires, 564 F.3d at 942 (same).
Steps One through Three require the claimant to prove (1) she is not
currently engaged in substantial gainful activity, (2) she suffers from
a severe impairment, and (3) her disability meets or equals a listed
impairment.

Pate-Fires, 564 F.3d at 942.

If the claimant does not

suffer from a listed impairment or its equivalent, the Commissioner’s
analysis proceeds to Steps Four and Five.

Id.

Step Four requires the

Commissioner to consider whether the claimant retains the RFC to perform
her PRW.

Id.

The claimant bears the burden of demonstrating she is no

longer able to return to her PRW.

Id.

If the Commissioner determines

the claimant cannot return to PRW, the burden shifts to the Commissioner
at Step Five to show the claimant retains the RFC to perform other work.
Id.
V. DISCUSSION
Plaintiff argues the ALJ erred (1) in considering Listing § 12.05
addressing mental retardation;

(2) in assessing her RFC; and (3) in

posing the hypothetical question to the VE.
1.

Listing § 12.05 - Mental Retardation
Plaintiff argues that she meets or equals the criteria of Listing

§ 12.05, which deals with mental retardation.

She asserts the ALJ erred

in giving greater credence to Ms. Bruner, the consultative evaluator,
over that of a school psychologist.
Security

Ruling

06-3p,

the

school

acceptable source of medical proof.

She argues that under Social
psychologist

is

considered

an

The court disagrees.

“To qualify for disability under a listing, a claimant carries the
burden of establishing that his condition meets or equals all specified
medical criteria.”

McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011)

(citing Marciniak v. Shalala, 49 F.3d 1350, 1353 (8th Cir. 1995)).

A

claimant will not be deemed to meet a listing merely because she has a
diagnosis of a condition named therein and meets just some of the
criteria. Id. at 612.

While an ALJ is required to consider evidence of
-8-

listed impairments and determine whether they meet or equal any of the
listed impairments, “[t]he fact that the ALJ d[oes] not elaborate on this
conclusion does not require reversal [where] the record supports h[is]
overall conclusion.”

Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir.

2006).
The

regulations

define

mental

retardation

as

“significantly

subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period” before
age 22.

See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.

The required

level of severity for § 12.05 is met when an impairment satisfies the
diagnostic description in the introductory paragraph, as well as any one
of the four sets of criteria set forth in paragraphs A, B, C, or D.

See

20 C.F.R. Pt. 404, Subpt. P., App. 1, §§ 12.00 and 12.05; Maresh v.
Barnhart, 438 F.3d 897, 899 (8th Cir. 2006).
The required level of severity is met for this Listing only when the
requirements of one of the subsections are also met:
A.
Mental incapacity evidenced by dependence
upon others for personal needs (e.g., toileting,
eating, dressing, or bathing) and inability to
follow
directions,
such
that
the
use
of
standardized measures of intellectual functioning
is precluded;
B.
A valid verbal, performance, or full scale IQ
of 59 or less;
C.
A valid verbal, performance, or full scale IQ
of 60 through 70 and a physical or other mental
impairment imposing an additional and significant
work-related limitation of function; or
D.
A valid verbal, performance, or full scale IQ
of 60 through 70, resulting in at least two of the
following:
1.
Marked restriction of activities of daily
living; or
2.
Marked difficulties
functioning; or

in

maintaining social

3.
Marked
difficulties
in maintaining
concentration, persistence, or pace; or

-9-

4.
Repeated episodes of decompensation, each
of extended duration.
Id.
It is plaintiff's burden to demonstrate, through medical evidence,
that her impairments meet or equal all of the specified medical criteria
contained in a particular listing.
1067, 1070 (8th Cir. 2004).

See Johnson v. Barnhart, 390 F.3d

An impairment that manifests only some of

those criteria, no matter how severely, does not qualify.
v. Zebley, 493 U.S. 521, 530 (1990).

See Sullivan

The Listing does not require the

Commissioner to make a finding of mental retardation based on IQ test
results alone.

See Gasaway v. Apfel, 195 F.3d 345, 345 (8th Cir. 1999).

As the above Listing and the Diagnostic and Statistical Manual of Mental
Disorders both provide, the diagnosis of mental retardation requires both
subaverage general intellectual functioning and deficits in adaptive
functioning.

See

American

Psychiatric

Association,

Diagnostic

and

Statistical Manual of Mental Disorders, (DSM-IV-TR) 41 (4th ed. 2000).
Both sources make clear that a low IQ score is not sufficient for
diagnosis, nor is a low IQ score alone sufficient to meet the Listing.
The ALJ's determination that plaintiff did not meet or equal any of the
four subsections of Listing § 12.05 is supported by substantial evidence
on the record as a whole. Subsection 12.05A requires a mental incapacity
evidenced by, inter alia, dependence on others for personal needs, such
as "toileting, eating, dressing, or bathing."
P, App. 1, § 12.05A.
the

requirements

of

20 C.F.R. Pt. 404, Subpt.

Although plaintiff does not argue that she meets
Listing

§

12.05A,

the

record

evidence

also

demonstrates that plaintiff was not dependent on others for those needs.
(Tr. 33.)
The ALJ correctly noted that plaintiff did not meet the requirements
of Listing § 12.05B because she had no valid IQ score of 59 or less.
(Tr. 15.) The ALJ discussed all of plaintiff's IQ scores, noting the May
2004 Stanford-Binet full scale IQ score of 53, verbal IQ score of 58, and
nonverbal IQ score of 52, as well as the WISC-III full scale IQ score of
49, verbal IQ score of 56, and performance IQ score of 49.
201.)

(Tr. 13-14,

The ALJ observed that Ms. Burner administered the WAIS-III to

plaintiff in April 2009, resulting in a full scale IQ score of 76, a
-10-

verbal IQ score of 75, and a performance IQ score of 81.

(Tr. 14, 252.)

The ALJ acknowledged the 2004 scores but gave greater weight to the more
recent IQ scores obtained by Ms. Burner, noting that she had offered
possible reasons for the discrepancies between the IQ scores.

(Tr. 15.)

See Clark v. Apfel, 141 F.3d 1253, 1255 (8th Cir. 1998) (Commissioner is
not required to accept a claimant's IQ scores and may reject scores that
are inconsistent with the record).

Test results of this sort should be

examined "to assure consistency with daily activities and behavior." Id.
Here,

the

ALJ

identified

the

evidence

that

was

inconsistent

with

plaintiff's most recent IQ scores and properly relied upon the later
scores.
While the ALJ acknowledged that it was unclear who performed the
2004 testing, plaintiff correctly notes that those tests were conducted
by a school psychologist, an acceptable medical source.

(Tr. 14, 201.)

20 C.F.R. §§ 404.1513(a)(2) and 416.913(a)(2); Social Security Ruling
(SSR) 06-3p, 2006 WL 2263437 (Aug. 9, 2006). The ALJ properly found that
there was no record evidence to show the validity of the earlier scores.
(Tr. 14.)

Moreover, plaintiff's 2004 IQ scores are not valid because

they were obtained 8 years ago, when plaintiff was only 13 years old.
(Tr. 201.)
Listing § 112.00 discusses IQ scores for children:
IQ test results must also be sufficiently current
for accurate assessment under 112.05. Generally,
the results of IQ tests tend to stabilize by the
age of 16. Therefore, IQ test results obtained at
age 16 or older should be viewed as a valid
indication of the child's current status, provided
they are compatible with the child's current
behavior. IQ test results obtained between ages 7
and 16 should be considered current for 4 years
when the tested IQ is less than 40, and for 2 years
when the IQ is 40 or above. . . .
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.00(D)(10).

Here, under the

Listing, plaintiff's score was obtained when she was 13 years old, and
it was only valid for 2 years, or until May 2006.

See id.

Therefore,

the results of Ms. Burner's consultative examination were the only valid
IQ scores in the record, and there was no "valid verbal, performance, or
-11-

full scale IQ of 59 or less" in the record that could meet Listing
§ 12.05B.

See, e.g., Rucker for Rucker v. Apfel, 141 F.3d 1256, 1260

(8th Cir. 1998) (IQ scores obtained between ages 7 and 16 are valid for
only two years when the score is 40 or above).

Thus, the ALJ would have

erred had he relied upon plaintiff’s 2004 scores to support a finding
that plaintiff satisfied Listing § 12.05B.

Because the 2004 IQ scores

were invalid as a matter of law, the ALJ properly gave greater weight to
plaintiff’s 2009 IQ scores.
Third,

substantial

evidence

supports

the

ALJ's

finding

plaintiff did not meet the requirements of Listing § 12.05C.

that

(Tr. 15.)

The ALJ properly observed that there was no "valid verbal, performance,
or full scale IQ of 60 through 70" in the record that could meet Listing
§ 12.05C.

See Rucker, 141 F.3d at 1259-60.

Instead, the only valid

scores available to the ALJ were from the 2009 testing, none of which
were below 70.
Finally,
§ 12.05D.
subsection.

(Tr. 252.)
plaintiff

did

not

meet

the

requirements

of

Listing

Plaintiff does not have a valid IQ score to satisfy this
The ALJ also found that plaintiff had mild restrictions of

mental activities of daily living, mild difficulties in maintaining
social functioning, moderate difficulties in maintaining concentration,
persistence, or pace, and no episodes of decompensation of extended
duration.

(Tr. 16.)

These findings preclude a determination that

plaintiff met Listing § 12.05D.
The court concludes substantial evidence on the record as a whole
supports the ALJ's finding that plaintiff does not meet or equal the
criteria of Listing § 12.05.
2.

Residual Functional Capacity
Plaintiff next argues the ALJ erred in assessing her RFC.

RFC is

a medical question and the ALJ’s determination of RFC must be supported
by substantial evidence in the record.

Hutsell v. Massanari, 259 F.3d

707, 711 (8th Cir. 2001); Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir.
2001); Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000).

RFC is what

a claimant can do despite her limitations, and it must be determined on
the

basis

of

all

relevant

evidence,
-12-

including

medical

records,

physicians’ opinions, and a claimant’s description of her limitations.
Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001); 20 C.F.R.
§ 404.1545(a). While the ALJ is not restricted to medical evidence alone
in evaluating RFC, the ALJ is required to consider at least some evidence
from a medical professional.

Lauer, 245 F.3d at 704.

The ALJ found plaintiff would be capable of light work.

She could

lift and/or carry 20 pounds occasionally and 10 pounds frequently.
could sit, stand, and/or walk 6 hours in an 8-hour workday.

She

She could

understand, remember, and carry out simple instructions in a work setting
with no more than routine changes. Plaintiff would do better with verbal
instructions, and if written instructions were used they would need to
be at an elementary level.

She might need repetition of instruction and

supervision while learning tasks.

Plaintiff would be unable to perform

work that required dealing with money, such as making change, and should
have no more than rare contact with the public.

(Tr. 16.)

Plaintiff argues the ALJ erred because there is significant evidence
indicating she needed a supported work environment, as well as extended
repetition in order to learn skills.

Plaintiff also contends the ALJ

wrongly relied upon Ms. Burner’s finding of borderline intellectual
functioning, which was not a fully informed finding and did not properly
consider the school records.

She argues further that Ms. Burner could

not explain the discrepancy with any degree of medical certainty.
The court disagrees.

It is permissible for the ALJ to consider a

claimant's activities of daily living. Cf. Clevenger v. Astrue, 567 F.3d
971, 976 (8th Cir. 2009)("Our cases admittedly send mixed signals about
the significance of a claimant's daily activities in evaluating claims
of disabling pain, but [claimant] did report that she engaged in an array
of such activities – including doing laundry, washing dishes, changing
sheets, ironing, preparing meals, driving, attending church, and visiting
friends and relatives – and it was not unreasonable under for the ALJ to
rely on this evidence to infer that [claimant’s] assertion of disabling
pain was not entirely credible.").

Plaintiff's argument about her

activities of daily living is merely a disagreement with the ALJ's
evaluation of the evidence and implies that the court should weigh the
evidence differently.

The court will decline to do so.
-13-

See Qualls v.

Apfel, 158 F.3d 425, 427 (8th Cir. 1998) ("This court cannot reverse the
Commissioner’s decision merely because substantial evidence would have
supported an opposite decision.”)

To the extent plaintiff is arguing

that the ALJ erred in relying on Ms. Burner's opinion and should have
adopted the opinions of the treating physician, the court disagrees.
this

case

there

was

no

valid

opinion

available

physician, nor does plaintiff identify any.

from

any

In

treating

The school psychologist

identified in the 2004 testing did not “treat” plaintiff, and plaintiff
does not contend otherwise.
Here, as discussed above, the ALJ reviewed the medical evidence and
formulated an RFC in keeping with the record as a whole.

(Tr. 16.)

The

ALJ included limitations intended to account for plaintiff's mental
impairments.

The ALJ relied on Ms. Burner’s opinion that plaintiff had

no significant cognitive deficiency that would preclude obtaining and
maintaining gainful employment and that plaintiff could obtain employment
in line with her intellectual functioning. (Tr. 253.) Those limitations
are also in line with plaintiff’s February and May 2010 IEPs, which
stated that plaintiff learned best when information was broken into small
steps and mastered before moving to the next step, and that once she
learned a skill, she could perform it with little supervision.

(Tr.

138-39, 208.)
Substantial evidence supports the ALJ's finding that plaintiff did
not require repetition or special supervision beyond initial training and
could therefore perform competitive work.

3.

(Tr. 16.)

Hypothetical Question
Plaintiff argues the hypothetical question to the VE was flawed

because it did not capture the concrete consequences of her impairment,
and as a result, the VE’s response does not constitute substantial
evidence.

Plaintiff contends that she is incapable of competitive

employment when her school records are considered, along with the
functional

limitations

that

flow

from

those

medically

determinable

impairments.
The ALJ’s hypothetical question to the VE must completely describe
a claimant's individual impairments.
-14-

See House v. Shalala, 34 F.3d 691,

694 (8th Cir. 1994).

The question must include only those impairments

which actually exist, and are supported by substantial evidence, not
those rejected by the ALJ.

See Davis v. Shalala, 31 F.3d 753, 755 (8th

Cir. 1994); see also Bradshaw v. Heckler, 810 F.2d 786, 790 (8th Cir.
1987) (hypothetical must state with precision claimant’s physical and
mental impairments).

An improper hypothetical question cannot serve as

substantial evidence under § 405(g).

See Whitmore v. Bowen, 785 F.2d

262, 263-64 (8th Cir. 1986).
In this case the ALJ found plaintiff did not have any past relevant
work. In response to a hypothetical that included the ALJ's RFC findings
that included all of plaintiff's credible impairments, the VE testified
that such an individual could perform other jobs existing in significant
numbers in the national economy, such as racker, street cleaner, and
bottling line attendant.

(Tr. 38.)

The hypothetical question was proper, as it included only those
impairments and restrictions found credible by the ALJ.

See Guilliams

v. Barnhart, 393 F.3d 798, 804 (8th Cir. 2005) ("Discredited complaints
. . . are properly excluded from a hypothetical question so long as the
ALJ had reason to discredit them.").

The ALJ concluded, based upon VE

testimony, that plaintiff could make a successful adjustment to other
work, citing occupations such as a racker, a street cleaner, and a
bottling line attendant.

(Tr. 17-18.)

Because the hypothetical question was properly formulated, the VE’s
testimony that jobs existed that plaintiff could perform constitutes
substantial evidence supporting the Commissioner's decision.

See Miller

v. Shalala, 8 F.3d 611, 613-14 (8th Cir. 1993).
III.

CONCLUSION

For the reasons set forth above, the court finds that the decision
of the ALJ is supported by substantial evidence in the record as a whole
and

is

consistent

with

the

applicable

law.

The

decision

Commissioner of Social Security is affirmed.
An appropriate Judgment Order is issued herewith.
/S/
David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on October 17, 2012.
-15-

of

the