Tobar v. Astrue
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
MICHAEL J. ASTRUE,
Commissioner of Social Security,
No. 4:11 CV 1939 DDN
This action is before the court for judicial review of the final
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. §
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).
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.
decision of the ALJ stands as the final decision of the Commissioner.
II. EDUCATIONAL AND OTHER HISTORY
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.
Stanford-Binet Intelligence Scale.
Plaintiff scored a full scale IQ
score of 53, verbal IQ score of 58, and nonverbal IQ score of 52.
district staff also administered the Wechsler Intelligence Scale for
Plaintiff scored a full scale IQ score of 49, a
verbal IQ score of 56, and a performance IQ score of 49.
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
On April 3, 2009, Alison Burner, M.A., conducted a consultative
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
Ms. Burner opined with a 95% confidence level that plaintiff's IQ
fell within the borderline range of intellectual functioning.
weaknesses in numerical reasoning and short-term memory and a strength
in graphomotor speed. All other skills fell within the borderline range.
Ms. Burner considered the evaluation a valid estimate of plaintiff's
actual abilities and stated that plaintiff appeared to demonstrate
She suggested that plaintiff's difficulties in
She opined that plaintiff had no significant cognitive
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
well-suited for work involving money management, such as the operation
of cash registers.
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
Similarly, Ms. Burner stated that plaintiff's
2004 Stanford-Binet score and 2009 WAIS-III score were statistically
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.
Ms. Burner opined that there were several possible explanations for
the discrepancies in scores between the 2004 and 2009 testing.
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.
She also observed
Ms. Burner noted that
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.
Ms. Burner further stated that plaintiff was initially granted
Social Security benefits for learning disability and speech problems in
She noted that mental retardation was apparently not alleged at
that time and was apparently not the reason for the allowance.
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
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.
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
Plaintiff learned best when information was broken into small steps and
mastered before moving to the next step.
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.
required repetition of skills not provided by competitive work training
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.
listed plaintiff’s employment goal as employment in a nursing home,
veterans' home, or food service with support from the Division of
An IEP dated May 19, 2010, described plaintiff similarly.
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
encouragement, and repetition at each work site.
The IEP team concluded
remained appropriate, no further testing was required, and academic
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.
reflected mild limitations in activities of daily living and maintaining
concentration, persistence, or pace.
Plaintiff received Special School
District services while attending high school for learning disabilities
and speech impairment.
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.
limitation of social interactions.
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
criticism from supervisors, to respond appropriately to changes in the
work setting, and to set realistic goals or make plans independently of
Dr. Scher opined that plaintiff retained the mental ability to
understand and remember simple instructions and to sustain attention to
complete simple repetitive tasks.
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.
She does not have a driver’s
She has academic difficulties in math, reading, and spelling.
She can take a telephone message with assistance.
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.
She can handle her own personal care.
She does not have
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.
individual could sit, stand, and walk with usual breaks for about six
hours in an eight-hour workday.
She was limited to jobs that involved
directions in a work setting with no more than routine changes.
individual performed better with verbal than written instructions and,
if instructions were written, they had to be at an elementary school
She would need repetition of instruction and supervision while
learning tasks, but once she learned a task, she could perform without
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.
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.
DECISION OF THE ALJ
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
remembering, and following simple instructions and directions in a work
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.
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
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.
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.
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
In determining whether the evidence is
substantial, the court considers evidence that both supports and detracts
from the Commissioner's decision.
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
1382c(a)(3)(A); Pate-Fires, 564 F.3d 935, 942 (8th Cir. 2009).
five-step regulatory framework is used to determine whether an individual
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
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.
Step Four requires the
Commissioner to consider whether the claimant retains the RFC to perform
The claimant bears the burden of demonstrating she is no
longer able to return to her PRW.
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.
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.
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.
acceptable source of medical proof.
She argues that under Social
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
McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011)
(citing Marciniak v. Shalala, 49 F.3d 1350, 1353 (8th Cir. 1995)).
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
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]
Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir.
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period” before
See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.
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.
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:
Mental incapacity evidenced by dependence
upon others for personal needs (e.g., toileting,
eating, dressing, or bathing) and inability to
standardized measures of intellectual functioning
A valid verbal, performance, or full scale IQ
of 59 or less;
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
A valid verbal, performance, or full scale IQ
of 60 through 70, resulting in at least two of the
Marked restriction of activities of daily
concentration, persistence, or pace; or
Repeated episodes of decompensation, each
of extended duration.
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).
The Listing does not require the
Commissioner to make a finding of mental retardation based on IQ test
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
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.
20 C.F.R. Pt. 404, Subpt.
Although plaintiff does not argue that she meets
demonstrates that plaintiff was not dependent on others for those needs.
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.
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
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.
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.
plaintiff's most recent IQ scores and properly relied upon the later
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.
Moreover, plaintiff's 2004 IQ scores are not valid because
they were obtained 8 years ago, when plaintiff was only 13 years old.
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.
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
full scale IQ of 59 or less" in the record that could meet Listing
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.
plaintiff did not meet the requirements of Listing § 12.05C.
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
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.
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
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.
Residual Functional Capacity
Plaintiff next argues the ALJ erred in assessing her RFC.
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
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.
lift and/or carry 20 pounds occasionally and 10 pounds frequently.
could sit, stand, and/or walk 6 hours in an 8-hour workday.
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.
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
The court will decline to do so.
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.
physician, nor does plaintiff identify any.
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.
ALJ included limitations intended to account for plaintiff's mental
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.
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.
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
Plaintiff contends that she is incapable of competitive
employment when her school records are considered, along with the
The ALJ’s hypothetical question to the VE must completely describe
a claimant's individual impairments.
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
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.
The hypothetical question was proper, as it included only those
impairments and restrictions found credible by the ALJ.
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.
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.
v. Shalala, 8 F.3d 611, 613-14 (8th Cir. 1993).
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
Commissioner of Social Security is affirmed.
An appropriate Judgment Order is issued herewith.
David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on October 17, 2012.
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