Wehrenbrecht v. Social Security Administration

Filing 27

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the relief sought by Plaintiff in her Complaint and Brief in Support of Complaint is DENIED; Docs. 1, 18. IT IS ORDERED that a separate judgment be entered incorporating this Memorandum and Order. Signed by Magistrate Judge Noelle C. Collins on 9/26/2014. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BARBARA J. WEHRENBRECHT,
Plaintiff,
V.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.1

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Case No. 4:12CV1788 NCC

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision
of the Commissioner denying the application of Barbara J. Wehrenbrecht (Plaintiff) for
Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C.
§§ 401 et seq., and for Supplemental Security Income (SSI) under Title XVI of the Act, 42
U.S.C. §§ 1381 et seq. Plaintiff has filed a brief in support of the Complaint. (Doc. 18).
Defendant has filed a brief in support of the Answer. (Doc. 24). The parties have consented to
the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. §
636(c). (Doc. 26).
I.
PROCEDURAL HISTORY
On September 15, 2010, Plaintiff filed her applications for DIB and SSI, with a disability
onset date of January 23, 2010. (Tr. 114-119). Plaintiff’s applications were denied and she
requested a hearing before an Administrative Law Judge (ALJ). (Tr. 8). After a hearing, by
1

Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, she should be substituted for
Michael J. Astrue as the defendant. No further action need be taken to continue this suit by
reason of the last sentence of § 205(g) of the Act.
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decision dated March 26, 2012, the ALJ found Plaintiff not disabled. (Tr. 8-15). The Appeals
Council denied Plaintiff’s request for review. (Tr. 1-3). 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. See 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). See 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 show evidence of other jobs in the national
economy that can be performed by a person with the claimant’s RFC. See 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, the decision must be affirmed if it is
supported by substantial evidence. See Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984).

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“Substantial evidence is less than a preponderance but is enough that a reasonable mind would
find it adequate to support the Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d
1019, 1022 (8th Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). In Bland
v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988), the Eighth Circuit Court of Appeals held:
The 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. See 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. See 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. See 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. See Krogmeier, 294 F.3d at 1022. See also Eichelberger, 390 F.3d at 589;

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Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000) (quoting Terrell v. Apfel, 147 F.3d 659, 661
(8th Cir. 1998)); Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001).
To determine whether the Commissioner’s final decision is supported by substantial
evidence, the court is required to review the administrative record as a whole and to consider:
(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. See 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. See 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 or her to reject the plaintiff’s complaints. See Guilliams, 393 F.3d at
801; Masterson, 363 F.3d at 738; 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 or she considered all of the
evidence. Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); 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

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need only acknowledge and consider those factors. See id. Although credibility determinations
are primarily for the ALJ and not the court, the ALJ’s credibility assessment must be based on
substantial evidence. See 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. See
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. See 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. See Goff, 421 F.3d at 790; Nevland, 204 F.3d at 857.
To satisfy the Commissioner’s burden, the testimony of a vocational expert (VE) may be
used. An ALJ posing a hypothetical to a VE is not required to include all of a plaintiff’s
limitations, but only those which he finds credible. See 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. See Baker v. Barnhart, 457 F.3d 882, 894-95 (8th Cir. 2006); Carlock v.

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Sullivan, 902 F.2d 1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir.
1989).
III.
DISCUSSION
The issue before the court is whether substantial evidence supports the Commissioner’s
final determination that Plaintiff was not disabled. See 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 her decision as long as there is substantial evidence in favor of the
Commissioner’s position. See Cox, 495 F.3d at 617; Krogmeier, 294 F.3d at 1022.
Plaintiff, who was born in 1963, had a tenth grade education. In an undated Disability
Report, Plaintiff alleged disability due to carpal tunnel syndrome pain, numbness, and
immobility in her arms, wrists, and hands, and diabetes. She also stated she was 5 feet 6 inches
tall, weighed 195 pounds, completed the tenth grade, and previously worked as a waitress and for
a newspaper doing “ad sales/data entry.” (Tr. 160-61). At the February 8, 2012 hearing,
Plaintiff testified that, in the past year, she gained 25 pounds because she was unable to do things
that she had previously done; she had not worked for three or four years; she was let go from her
newspaper job after she had carpal tunnel surgery; her hand strength was weaker than it
previously had been and she dropped things; she had just started a 6-month course of physical
therapy; her diabetes was “doing okay”; she slept 3-4 hours because her arms “ache[d], hurt”;
she “maybe” could walk half a block; and she had difficulty concentrating because her life had
become “so depressing.” (Tr. 33-41, 44-45).
The ALJ first noted that Plaintiff had previously filed an application for benefits which
had been denied by an ALJ, by decision dated January 22, 2010; Plaintiff did not appeal that
decision; the prior ALJ’s decision was subject to res judicata; and, in fact, Plaintiff alleged in her

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current application that her disability did not begin until January 23, 2010. After considering the
record as a whole, including Plaintiff’s medical records and testimony, the ALJ found that
Plaintiff met the earnings requirements through December 31, 2012; she had not engaged in
substantial gainful activity since her alleged onset date of January 23, 2010; Plaintiff had obesity,
bilateral carpal tunnel syndrome, some degenerative disc disease of the cervical spine, Type II
diabetes, hyperlipidemia, and mild depression controlled by medication and conservative
treatment; Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity requirements of any listed impairment; and Plaintiff’s allegations
that the severity of her impairments prevented her from performing any sustained work activity
was not credible. The ALJ found Plaintiff had the RFC to perform the physical exertional and
non-exertional requirements of work except for lifting or carrying more than 10 pounds
frequently or more than 20 pounds occasionally, or doing frequent or constant grasping,
clutching, twisting, or squeezing with either hand or upper extremity. He further found that
Plaintiff had no credible, medically-established mental or other non-exertional limitations.
Finally, the ALJ found that Plaintiff’s past relevant work as an advertising insert clerk and data
input operator for a newspaper did not require the performance of work-related activities
precluded by her RFC, and that Plaintiff, therefore, was not disabled as defined in the Act,
through the date of his decision. (Tr. 8-15).
Plaintiff argues the ALJ’s decision is not supported by substantial evidence because,
upon formulating her RFC, the ALJ failed to consider the impact of both her severe and nonsevere impairments on her ability to work; upon concluding that Plaintiff could perform her past
relevant work, the ALJ provided no specific findings or analysis regarding the physical and
mental demands of this work; the ALJ did not obtain the testimony of a VE despite Plaintiff’s

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having non-exertional impairments; and the ALJ’s RFC assessment was conclusory and did not
contain any rational or reference to the supporting evidence. For the following reasons, the court
finds that Plaintiff’s arguments are without merit and that the ALJ’s decision is based on
substantial evidence.
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 the
severity of Plaintiff’s alleged impairments and her RFC. See Wildman v. Astrue, 596 F.3d 959,
969 (8th Cir. 2010) (A[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. See Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Hutsell, 892 F.2d at 750;
Benskin, 830 F.2d at 882.
To the extent that the ALJ did not specifically cite Polaski, other 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

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Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). See also Tucker v. Barnhart, 363 F.3d 781,
783 (8th Cir. 2004) (AThe 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, A[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). AIf 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, in regard to Plaintiff’s diabetes, that she did not exercise, did
not always check her blood sugar levels as advised, and sometimes did not follow a prescribed
diet. (Tr. 11). See Brown v. Chater, 87 F.3d 963, 965 (8th Cir. 1996) (claimant=s failure to
comply with prescribed medical treatment and lack of significant medical restrictions is
inconsistent with complaints of disabling pain). Indeed, it was reported on August 24, 2010, in
regard to Plaintiff’s diabetes, that when she was asked about meal planning, she reported “none”
and that she rarely exercised. (Tr. 324). On January 26, 2011, it was reported that although
Plaintiff had been diagnosed with diabetes six years prior and was on medication for it, “she
ha[d] done this inconsistently x 2 years.” (Tr. 346). On April 14, 2011, it was reported that
Plaintiff had a problem with eating a lot of candy and even got up in the middle of the night and
ate candy, and that she had recently started exercising some, and she was taking all of her

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medication. Smoking cessation was encouraged on this date. (Tr. 392). On November 3, 2011,
it was reported that Plaintiff was continuing to smoke cigarettes and was not currently
exercising. (Tr. 586).
Second, the ALJ considered that Plaintiff’s mild depression was controlled by
medication. (Tr. 11, 336). Also, Plaintiff reported, on November 24, 2010, that medication
helped with paraesthesias and with neuropathy symptoms, although her afternoon doses caused
her to become tired. (Tr. 333, 335). See Schultz v. Astrue, 578 F.3d 838, 946 (8th Cir. 2007)
(conditions which can be controlled with medication are not disabling).
Third, the ALJ considered diagnostic test results and the absence of testing for certain
conditions. (Tr. 11-12). While an ALJ may not disregard subjective pain allegations solely
because they are not fully supported by objective medical evidence, an ALJ is entitled to make a
factual determination that a claimant’s subjective pain complaints are not credible in light of
objective medical evidence. See 20 C.F.R. § 416.908, 406.929; Forte v. Barnhart, 377 F.3d 892,
895 (8th Cir. 2004); Ramirez v. Barnhart, 292 F.3d 576 (8th Cir. 2002). Additionally, it is
proper for an ALJ to consider the absence of objective medical evidence to support a claimant’s
complaints of disabling pain, although the ALJ may not discount a claimant's subjective
complaints solely because they are unsupported by objective medical evidence. See Halverson
v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010) (citing Mouser v. Astrue, 545 F.3d 634, 638 (8th
Cir. 2008)).
The ALJ considered that, although Plaintiff complained of numbness in her feet and
although there was a tentative diagnosis of peripheral neuropathy related to her diabetes, this
diagnosis was never validated by nerve testing. (Tr. 11). The impression from a March 8, 2010
x-ray of the right hand and wrist was a “radiographically negative exam.” (Tr. 712-14). When

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Plaintiff complained of right elbow and hand pain in June 2010, x-rays showed only mild
degenerative changes and EMG and nerve conduction studies showed evidence of carpal tunnel
syndrome, a bit worse on the right side, but no other neuropathies. (Tr. 11, 220-21, 223-24). On
June 29, 2010, Martin Wice, M.D., reported that an elctromyographic study of Plaintiff’s upper
extremities revealed “normal insertional activity, and normal motor units and recruitment
proportional to effort.” (Tr. 223).
On September 7, 2010, Donald Pruitt, M.D., reported that x-rays showed “widening of
the scaphclunate space of an uncertain age” and no arthritic changes. (Tr. 241-42). When
Plaintiff complained of bi-lateral shoulder pain in November 2010, x-rays of both shoulders were
negative for fracture, subluxation, and bone erosion. (Tr. 11, 426). After Plaintiff complained of
left knee pain, in June 2011, studies of her left knee, in July 2011, showed no joint effusion,
fracture, dislocation or focal bone lesion and that the joint spaces and articular surfaces were
“fairly well-maintained,” although patellar spurring was noted. (Tr. 12, 423, 627). An April
2011 bone density study of Plaintiff’s back and neck was normal. (Tr. 12, 425). A November
15, 2011 x-ray of the cervical spine showed “moderate degenerative changes at C5-6. (Tr. 695).
The impression from a December 1011 MRI of the cervical spine was “spondylosis but no frank
cord compression.” (Tr. 858). When Plaintiff presented with abdomen pain, a December 14,
2011 CT showed mild fatty infiltration of the liver and no acute abdominal or pelvic disease.
(Tr. 11, 889, 902).
Fourth, the ALJ considered the observations of doctors upon examining Plaintiff. See
Orrick v. Sullivan, 966 F.2d 368, 372 (8th Cir. 1992) (ALJ may give more weight to medical
records than to claimant’s testimony); Polaski, 739 F.2d at 1322 (ALJ must consider
observations of claimant’s treating and examining doctors). In particular, Dr. Wice reported, on

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June 29, 2010, that Plaintiff had “relatively good muscle mass and normal muscle tone”; her
strength was intact; and there was good vascular supply throughout both arms without any
significant edema. (Tr. 222). On September 7, 2010, Dr. Pruitt reported that Plaintiff was welldeveloped, in no acute distress, alert and oriented, and her mood and affect were normal; she had
normal range of motion of the right wrist and no pain to palpation at the scapholunate junction;
and she had numbness and tingling in the fourth and fifth fingers. (Tr. 241).
On November 24, 2010, Plaintiff was oriented and had normal mood and affect and was
alert and oriented; she displayed normal reflexes; her coordination was normal; and both
shoulders had “pain to extremes of motion,” but no swelling or point tenderness. Plaintiff
reported on this date that her depression and anxiety were “currently stable, she ha[d] no
concerns or complaints.” (Tr. 334-38). On February 16, 2011, Plaintiff was oriented and had
normal mood and affect; her behavior was normal; she had normal range of motion in her neck
and musculoskeletal system, although she exhibited pain in her left shoulder; she was negative
for weakness; and she had normal muscle tone, coordination, and gait. (Tr. 355-57). On March
16, 2011, David Strege, M.D., reported that Plaintiff was alert and oriented; she had normal
range of motion of both elbows and diffuse trigger point tenderness throughout both volar
forearms; she had no pain with resisted wrist flexion, “other than minimally at the medial
epicondyle bilaterally”; she was “non-tender in the area of the carpal tunnel and ha[d] a wellhealed surgical wound”; and, neurologically, she had “no intrinsic atrophy or weakness.” (Tr.
244-45).

In November 2011, Plaintiff was alert and oriented; she had no cervical spine

tenderness or deformity; she had “painless neck range of motion”; she ambulated with a normal
gait; and there was “no evidence of generalized ligamentous laxity”; her right and left upper

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extremities were neurovascularly intact; and she had tenderness to a rotator cuff incision. (Tr.
599-600).
Fifth, the ALJ considered that Plaintiff declined surgery in September 2010 after she was
diagnosed with possible scapolunte instability of the right wrist. (Tr. 11, 241-42).
Sixth, the ALJ considered that, although Plaintiff last had surgery for carpal tunnel
syndrome, there had been no further recommendation for surgery and there was no evidence
Plaintiff had seen her hand surgeon since September 2008. (Tr. 13). See Edwards v. Barnhart,
314 F.3d 964, 967 (8th Cir. 2003) (A[T]he ALJ concluded, and we agree, that if her pain was as
severe as she alleges, [Plaintiff] would have sought regular medical treatment.@). Additionally,
the ALJ noted the record did not show Plaintiff had physical therapy in recent years. (Tr. 13).
Also, in June 2011, Dr. Pruitt reported that he would not recommend any further surgical
intervention for the arms and forearms. (Tr. 244).
Seventh, the ALJ considered that no doctor who had treated or examined Plaintiff, since
January 22, 2010, had stated or implied that she was disabled or totally incapacitated, or placed
Plaintiff on any long-term limitations in regard to her ability to stand, sit, walk, bend, lift, carry,
or do other basic exertional activities. (Tr. 13). A record that does not contain any physician
opinion of disability or total inability to work detracts from the claimant=s subjective complaints.
See Reney v. Barnhart, 396 F.3d 1007, 1011 (8th Cir. 2005); Anderson v. Shalala, 51 F.3d 777,
780 (8th Cir. 1995); Edwards v. Sec=y of Health & Human Servs., 809 F.2d 506, 508 (8th Cir.
1987); Fitzsimmons v. Mathews, 647 F.2d 862, 863 (8th Cir. 1981).
Ninth, the ALJ considered that during the administrative hearing Plaintiff displayed no
obvious signs of depression, anxiety, memory loss, or other mental disturbance. (Tr. 14). While
an ALJ cannot accept or reject subjective complaints solely on the basis of personal observations,

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Ward v. Heckler, 786 F.2d 844, 847-48 (8th Cir. 1986), an ALJ's observations of a claimant=s
appearance and demeanor during the hearing is a consideration, see Steed v. Astrue, 524 F.3d
872, 876 (8th Cir. 2008) (holding that an ALJ Ais in the best position@ to assess credibility
because he is able to observe a claimant during his testimony); Johnson v. Apfel, 240 F.3d 1145,
1147-48 (8th Cir. 2001) (AThe ALJ=s personal observations of the claimant=s demeanor during the
hearing is completely proper in making credibility determinations@); Jones v. Callahan,122 F.3d
1148, 1151 (8th Cir. 1997) (AWhen an individual's subjective complaints of pain are not fully
supported by the medical evidence in the record, the ALJ may not, based solely on his personal
observations, reject the complaints as incredible.@). Here, to reach his conclusion, the ALJ
combined his review of the record as a whole with his personal observations.
In conclusion, the court finds that the ALJ’s consideration of Plaintiff’s credibility is
based on substantial evidence and consistent with the Regulations and case law.
B.

Plaintiff’s RFC:
As stated above, Plaintiff contends the ALJ’s RFC determination is not supported by

substantial evidence because he did not consider the combination of her severe and non-severe
impairments.
The Regulations define RFC as Awhat [the claimant] can do@ despite his or her Aphysical
or mental limitations.@ 20 C.F.R. ' 404.1545(a). AWhen 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). AThe 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

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McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). See also Anderson v. Shalala, 51 F.3d.
777, 779 (8th Cir. 1995). To determine a claimant=s RFC, the ALJ must move, analytically, from
ascertaining the true extent of the claimant=s impairments to determining the kind of work the
claimant can still do despite his or her impairments. Although assessing a claimant=s RFC is
primarily the responsibility of the ALJ, a 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 A>[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 Arequired to consider at least some supporting evidence from a professional.@ Id.
See also Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (AThe ALJ bears the primary
responsibility for determining a claimant's RFC and because RFC is a medical question, some
medical evidence must support the determination of the claimant's RFC.@); Eichelberger, 390
F.3d at 591.
Upon determining Plaintiff’s RFC the ALJ properly considered Plaintiff’s credibility.
See Pearsall v. Massanari, 274 F.3d 12211, 1218 (8th Cir. 2001) (prior to determining claimant’s
RFC, ALJ should consider claimant’s credibility). Further, consistent with the Regulations and
case law, the ALJ considered the objective medical evidence and the observations of doctors.
After doing so, the ALJ considered the extent to which Plaintiff’s physical and mental limitations
affected her ability to engage in work-related physical and mental activities. See Social Security
Regulation (SSR) 96-8p, 1996 WL 374184, at *2 (July 2, 1996) (RFC is Aan administrative
assessment of the extent to which an individual=s medically determinable impairment(s),

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including any related symptoms, such as pain, may cause physical or mental limitations or
restrictions that may affect his or her capacity to do work-related physical and mental
activities.@). In doing so, the ALJ addressed each of Plaintiff’s alleged impairments.
As for Plaintiff’s obesity, the ALJ found that there was no evidence that it reduced her
overall functional abilities, either by itself or in combination with other medically-established
impairments. See SSR 02-01p, 2000 WL 628049, at *2-5 (ALJ should do individual assessment
of the impact of obesity on claimant’s functioning when deciding whether impairment is severe);
20 C.F.R., Pt. 404, Subpt. P, App. 1, 1.00, Q (“[W[hen determining whether an individual with
obesity has a listing-level impairment or combination of impairments, and when assessing a
claim at other steps of the sequential evaluation process, including when assessing an
individual's residual functional capacity, adjudicators must consider any additional and
cumulative effects of obesity.”).

The ALJ further found that Plaintiff had no serious,

uncontrollable physical impairment that was not related to her hands or upper extremities; her
diabetes was under good control; there was no evidence of functional limitations related to her
neck despite disc disease; she had only minor changes in the left knee; and there was no medical
evidence she could not stand or walk normally.
As for Plaintiff’s alleged depression, the ALJ noted Plaintiff did not seek professional
help. Additionally, as noted above in regard to Plaintiff’s credibility, she was often reported to
be alert and well oriented; her depression was stable on medication; and she required no
hospitalization for a mental condition. Also, she had no long-term or sustained course of mental
health treatment from a mental health professional.

Further, pursuant to 20 C.F.R. '

404.1520a(c)(3)-(4), and (d)(1)-(3), the ALJ determined that there was no credible evidence that
Plaintiff had restrictions of daily living or maintaining social functioning; she had no recorded or

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credible deficiencies in concentration, persistence or pace; there was no credible evidence she
had any marked, extreme, or even moderate inability to function independently, appropriately,
and effectively, and on a sustained basis; and she had no recorded episodes of decompensation.
Thus, consistent with the Regulations, the ALJ concluded Plaintiff had no limitation in her
ability to do basis work activities based on mental functioning. Only after addressing the above
factors relevant to Plaintiff’s physical and mental conditions did the ALJ determine that
Plaintiff’s impairments did not meet the severity requirements of a listed impairment,
individually or in combination. The court finds that the ALJ’s determination, in this regard, is
based on substantial evidence.
As further required, the ALJ identified Plaintiff’s functional limitations and restrictions in
terms of her work-related ability on a function-by-function basis, and concluded that her
impairments, singly or in combination, did not produce symptoms and limitations sufficient to
prevent the performance of any sustained work related activity. (Tr. 15). See Masterson, 363
F.3d at 737; Harris v. Barnhart, 356 F.3d 926, 929 (8th Cir. 2004) (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).
Indeed, the ALJ considered limitations caused by Plaintiff’s neck and back pain and
carpal tunnel syndrome in formulating her RFC, to the extent he found such limitations credible,
as he found she could lift or carry no more than 10 pounds frequently or more than 20 pounds
occasionally. He also found she could not frequently or constantly grasp, clutch, twist or
squeeze either hand or her upper extremities. The ALJ found, other than what he included in
Plaintiff’s RFC, that she had no credible, medically-established limitations. The court finds that
this conclusion is based on substantial evidence.

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To the extent Plaintiff suggests the ALJ did not incorporate limitations in her RFC which
the ALJ did not find severe, including a non-severe mental impairment, a claimant’s RFC need
only include a plaintiff=s credible limitations. See Tindell v. Barnhart, 444 F.3d 1002, 1007 (8th
Cir. 2006) (AThe 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.@). The court finds,
therefore, that the ALJ was not required to include any limitations beyond those which he
included in Plaintiff’s RFC, and that the ALJ’s RFC determination is based on substantial
evidence.
To the extent Plaintiff argues the ALJ’s RFC determination is conclusory, the court finds
Plaintiff is incorrect; the ALJ addressed Plaintiff’s medical records in considerable detail, made
specific findings regarding any limitations in her ability to perform work-related activity, and
considered Plaintiff’s assertions; only after doing so did the ALJ make his RFC determination.
In conclusion, the court finds that the ALJ’s RFC determination is based on substantial evidence
and that all arguments Plaintiff makes to the contrary are without merit.
C.

Past Relevant Work and VE Testimony:
The ALJ found that Plaintiff’s RFC did not preclude her performing her past relevant

work as an advertising insert clerk and data input operator as she described and performed it.
(Tr. 12, 15). After making this determination the ALJ found Plaintiff not disabled, without
soliciting the testimony of a VE. Plaintiff contends the ALJ did not consider the requirements of
this past relevant work when determining that she could these jobs, and that the ALJ should have
obtained the testimony of a VE.
In a Work History Report, included in the record, Plaintiff stated that in her job in
advertising sales and data input clerk for a newspaper she took inbound and outbound calls, used

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a computer, conducted sales of help wanted ads, and provided customer service. Her job
required writing and the completion of reports, walking, standing, sitting, stooping, crouching,
writing, typing and handling small objects 8-hours each day. She also lifted less than 10 pounds.
(Tr. 168). Further, at the hearing Plaintiff testified that her job at the newspaper was a more of
“sit-down type job,” and she did typing and phone and computer work in this job. (Tr. 35).
The Social Security regulations define Apast relevant work@ as Awork experience [which]
... was done within the last fifteen years, lasted long enough for [the claimant] ... to learn to do it,
and was substantial gainful activity.@ 20 C.F.R. ' 404.1565(a). If the claimant is found to be
able to perform the duties of her past relevant work, then she is considered not disabled and
therefore ineligible for benefits. See Bowen v. City of New York, 476 U.S. 467, 471 (1986);
Martin v. Sullivan, 901 F.2d 650, 652 (8th Cir. 1990).
The Eighth Circuit has commented that when determining whether a claimant can
perform past relevant work, the following considerations are appropriate:
According to the Secretary's interpretation, sections 404.1520(e) and
416.920(e) require careful consideration of the interaction of the limiting effects
of the person's impairment(s) and the physical and mental demands of his or her
PRW to determine whether the individual can still do that work.
The decision as to whether the claimant retains the functional capacity to
perform past work which has current relevance has far-reaching implications and
must be developed and explained fully in the disability decision. Since this is an
important and, in some instances, a controlling issue, every effort must be made to
secure evidence that resolves the issues as clearly and explicitly as circumstances
permit.
Sufficient documentation will be obtained to support the decision. Any
case requiring consideration of PRW will contain enough information on past
work to permit a decision as to the individual's ability to return to such past
work....
Adequate documentation of past work includes factual information about
those work demands which have a bearing on the medically established
limitations. Detailed information about strength, endurance, manipulative ability,

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mental demands and other job requirements must be obtained as appropriate.
This information will be derived from a detailed description of the work obtained
from the claimant, employer, or other informed source . . . .
Groeper v. Sullivan, 932 F.2d 1234, 1238 (8th Cir. 1991) (citing SSR 82-62).
Indeed, SSR 82-62 requires that an ALJ has an obligation to A>fully investigate and make
explicit findings as to the physical and mental demands of a claimant's past relevant work and to
compare that with what the claimant herself is capable of doing before he determines that she is
able to perform her past relevant work.=@ Id. at 1238 (quoting Nimick v. Sec=y of Health and
Human Servs., 887 F.2d 864, 866 (8th Cir. 1989).

Moreover, where the record contains

substantial evidence that claimant can perform past work, the ALJ=s failure to develop past work
record in full detail does not require remand. See Battles v. Sullivan, 902 F.2d 657, 659 (8th Cir.
1990).
AAn ALJ=s decision that a claimant can return to [her] past work must be based on more
than conclusory statements. The ALJ must specifically set forth the claimant's limitations.@ Id.
Further, the ALJ must determine how a claimant=s limitations affect her RFC. He must make
explicit findings regarding the actual physical and mental demands of the claimant's past work.
The ALJ then should compare the claimant's RFC with the actual demands of her past work to
determine whether she is capable of performing the relevant tasks. Id.
Plaintiff’s description of her job at the newspaper did not require that she carry more than
10 pounds frequently or more than 20 pounds occasionally, or that she frequently or constantly
grasp, clutch, twist, or squeeze with either hand or upper extremity. See Zeiler v. Barnhart, 384
F.3d 932, 936 (8th Cir. 2004) (ALJ properly relied on plaintiff’s description of her duties in
performing her past relevant work). Thus, the court finds that substantial evidence supports the
ALJ’s determination that Plaintiff could perform her past relevant work as a newspaper

22

advertising clerk and data input operator. As such, the ALJ was not required to proceed further
with the sequential analysis, and properly found Plaintiff not disabled based on her ability to
perform her past relevant work. See 20 C.F.R. ' 404.1560(b)(3) (if claimant has RFC to perform
past relevant work, claimant will be found not disabled; there is no need to consider whether
vocational factors of age, education, and work experience or whether claimant’s past relevant
work exists in significant numbers); 20 C.F.R. ' 404.1520(a)(4)(iv)(f). To the extent the ALJ
did not specifically address the requirements of Plaintiff’s past relevant work in his decision, the
court will affirm as the record contains substantial evidence to support the ALJ’s conclusion.
See Battles, 902 F.2d at 659.
Further, because the ALJ found Plaintiff did not have any non-exertional limitations, see
Sanders v. Sullivan, 983 F.2d 822, 823 (8th Cir. 1992), and because he found that she could
perform her past relevant work, the ALJ was not required to obtain the testimony of a VE. See
Groeper v. Sullivan, 932 F.2d 1234, 1235 n.1 (8th Cir. 1991) (VE testimony not required where
claimant ALJ determines claimant can perform past relevant work). In conclusion, the court
finds that the ALJ’s determination that Plaintiff could perform her past relevant work and that
she, therefore, was not disabled is based on 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,
IT IS HEREBY ORDERED that the relief sought by Plaintiff in her Complaint and
Brief in Support of Complaint is DENIED; Docs. 1, 18.

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IT IS ORDERED that a separate judgment be entered incorporating this Memorandum
and Order.
Dated this 16th day of September, 2014.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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