Rutledge v. Astrue
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the relief sought by Plaintiff in her Complaint and Brief in Support of Complaint (Docs. 1, 16) is DENIED; IT IS FURTHER ORDERED that a separate judgment be entered incorporating this Memorandum and Order. Signed by Magistrate Judge Noelle C. Collins on July 14, 2014. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
KATHLEEN RUTLEDGE (HALL),
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case No. 4:12CV1908NCC
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 Kathleen Rutledge (Hall) (Plaintiff) for
Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C.
§ 401 et seq. Plaintiff has filed a brief in support of the Complaint. Doc. 16. 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.
Plaintiff’s previous application for benefits was denied by an ALJ on November 22,
2006. Tr. 9. Plaintiff filed her current application for DIB on December 20, 2007, alleging a
disability onset date of November 17, 2005. Tr. 167-79. Plaintiff’s application was denied, and
she requested a hearing before an Administrative Law Judge (ALJ). Tr. 94-100, 105. A hearing
was held before an ALJ. Tr. 110-29. In a decision dated May 20, 2007, the ALJ found Plaintiff
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.
not disabled. Tr. 77-85. Plaintiff filed a request for review with the Appeals Council, which
remanded the matter.2 Tr. 87-90. On December 9, 2010, Plaintiff appeared at a second hearing
before the same ALJ. Tr. 28-46. On March 24, 2011, the ALJ issued a second decision denying
Plaintiff benefits. Tr. 9-20. The Appeals Council denied Plaintiff’s request for review. Tr. 1-3.
As such, the ALJ’s second decision stands as the final decision of the Commissioner.
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)).
The Appeals Council directed the ALJ to reconsider Plaintiff’s RFC and to obtain the testimony
of a vocational expert to clarify the effect of Plaintiff’s limitations on her occupational base.
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.
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, that decision must be affirmed if it is
supported by substantial evidence. See Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984).
“Substantial evidence is less than a preponderance but is enough that a reasonable mind would
find it adequate to support the Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d
1019, 1022 (8th Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). In Bland
v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988), the Eighth Circuit Court of Appeals held:
[t]he concept of substantial evidence is something less than the weight of
the evidence and it allows for the possibility of drawing two inconsistent
conclusions, thus it embodies a zone of choice within which the Secretary
may decide to grant or deny benefits without being subject to reversal on
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;
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
(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
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
(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
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
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.
Sullivan, 902 F.2d 1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir.
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 1961, claimed she was disabled due to back and neck pain and
fibromyalgia. The ALJ found that res judicata precluded Plaintiff’s claim prior to November 23,
2006, and, therefore, the time relevant to her determination was from that date through the date
Plaintiff was last insured, March 31, 2010. The ALJ further found Plaintiff had not engaged in
substantial gainful activity during the relevant period; she had the severe impairments of obesity,
degenerative disc disease, and depression; and Plaintiff did not have an impairment or
combination of impairments that met or medically equaled a listed impairment.
concluded that Plaintiff had the RFC to perform sedentary work as defined in the Regulations,
and was able to carry out simple instructions and non-detailed tasks; she demonstrated adequate
judgment to make simple work-related decisions; she was able to adapt to routine/simple work
changes, and to take appropriate precautions to avoid hazards; she was able to perform repetitive
work according to set procedures, sequence or pace; and she was limited to occasional stooping,
kneeling, and crawling.3 The ALJ further determined that Plaintiff was unable to perform past
relevant work, but through the date she was last insured, there were jobs in the national economy
which Plaintiff could have performed. As such, the ALJ found Plaintiff not disabled.
20 C.F.R. ' 404.1567(a) defines sedentary work as follows: ASedentary work involves lifting
no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and other sedentary criteria are met.@
Indeed, Social Security Ruling (SSR) 85-15, 1985 WL 56857, at *5, states that A[w]here a person
has some limitation in climbing and balancing and it is the only limitation, it would not
ordinarily have a significant impact on the broad world of work. . . . If a person can stoop
occasionally (from very little up to one-third of the time) in order to lift objects, the sedentary
and light occupational base is virtually intact.@ The sitting requirement for the full range of
sedentary work Aallows for normal breaks, including lunch, at two hour intervals.@ Ellis v.
Barnhart, 392 F.3d 988, 996 (8th Cir. 2005) (citing SSR 96-9p, 1996 WL 374185, at *6 (July 2,
1996)). Additionally, the range of sedentary jobs requires a claimant Ato be able to walk or stand
for approximately two hours out of an eight-hour day. The need to alternate between sitting and
standing more frequently than every two hours could significantly erode the occupational base
for a full range of unskilled sedentary work.@ Id. at 997 (citing 1996 WL 374185, at *7).
Moreover, SSR 96-9p requires that Athe RFC assessment should include the frequency with
which an applicant needs to alternate between sitting and standing, and if the need exists, that
vocational expert testimony may be more appropriate than the grids.@ Id. It also states that Aa
finding that an individual has the ability to do less than a full range of sedentary work does not
necessarily equate with a decision of disabled.@
Plaintiff argues that the ALJ’s decision is not supported by substantial evidence because
the ALJ failed to point to some medical evidence to support her RFC determination, and because
the hypothetical which the ALJ posed to the VE did not adequately capture the concrete
consequences of her impairments. Additionally, Plaintiff argues the ALJ failed to give proper
consideration to the testimony of Plaintiff’s husband, a letter from Plaintiff’s mother, and the
medical opinions of doctors of record.
The court will first consider the ALJ=s credibility determination, as the ALJ=s evaluation
of Plaintiff=s credibility was essential to the ALJ=s determination of other issues, including
Plaintiff=s RFC. See Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (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.
See Randolph v.
Barnhart, 386 F.3d 835, 842 (8th Cir. 2004); Wheeler v. Apfel, 224 F.3d 891, 895 n.3 (8th Cir.
2000); Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996); Montgomery v. Chater, 69 F.3d
273, 275 (8th Cir. 1995). Additionally, an ALJ need not methodically discuss each Polaski
factor if the factors are acknowledged and examined prior to making a credibility determination;
where adequately explained and supported, credibility findings are for the ALJ to make. See
Lowe v. Apfel, 226 F.3d 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 her credibility
determination are based on substantial evidence.
First, the ALJ considered that, since her alleged onset date, Plaintiff routinely babysat
three children under the age of five years old. Tr. 67. Plaintiff also reported that she sewed, did
crafts, read, and watched movies, although she no longer did these things often because of a lack
of money. She also reported that she “sometimes” watched television, played cards, and saw her
grandchildren three to four times a week; she saw friends “maybe” two times a month, went to
her parents’ house on a regular basis, and went to the store “a couple times” a week; she went
outside only to go to the store, visit her parents, or pick up her grandchildren; she sometimes
drove, depending on her pain level; and she shopped in stores one or two times a week to buy
groceries or office supplies for her husband. Tr. 256-57. Additionally, Plaintiff’s daughter-inlaw reported that Plaintiff prepared her own meals, although Plaintiff denied doing so. Tr. 15,
218, 225, 243-44. Further, as considered by the ALJ, Plaintiff’s husband reported that Plaintiff
cleaned the house and did other household chores, prepared meals, and watched her
grandchildren. Tr. 243, 245.
While the undersigned appreciates that a claimant need not be bedridden before she can
be determined to be disabled, Plaintiff's daily activities can nonetheless be seen as inconsistent
with her subjective complaints of a disabling impairment and may be considered in judging the
credibility of complaints. See Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004) (ALJ
properly considered that claimant watched television, read, drove, and attended church upon
concluding that subjective complaints of pain were not credible); Dunahoo v. Apfel, 241 F.3d
1033, 1038 (8th Cir. 2001); Onstead, 962 F.2d at 805; Murphy v. Sullivan, 953 F.2d 383, 386
(8th Cir. 1992); Benskin, 830 F.2d at 883; Bolton v. Bowen, 814 F.2d 536, 538 (8th Cir. 1987).
Indeed, the Eighth Circuit holds that allegations of disabling Apain may be discredited by
evidence of daily activities inconsistent with such allegations.@ Davis v. Apfel, 239 F.3d 962,
967 (8th Cir. 2001). AInconsistencies between [a claimant=s] subjective complaints and [his]
activities diminish [his] credibility.@ Goff, 421 F.3d at 792. See also Haley v. Massanari, 258
F.3d 742, 748 (8th Cir. 2001); Nguyen v. Chater, 75 F.3d 429, 439-41 (8th Cir. 1996) (claimant=s
daily activities, including visiting neighbors, cooking, doing laundry, and attending church, were
incompatible with disabling pain and affirming denial of benefits at the second step of analysis).
Second, the ALJ considered inconsistencies in the record. Tr. 15. For example, at the first
hearing, held in September 2009, Plaintiff testified that she babysit her grandchildren, and that
she stopped doing that because she could not keep up with them (Tr. 56-57, 66), and at the
second hearing, held in December 2010, she testified that she had not done any babysitting (Tr.
31). Additionally, although Plaintiff denied preparing meals (Tr. 218), her husband reported that
she did so (Tr. 243). Further, Plaintiff’s husband’s description of the range of Plaintiff’s daily
activities included a much wider range of activities than Plaintiff’s description of her daily
activities. Specifically, Plaintiff denied doing yard work (Tr. 256), but her husband said she
mowed the lawn with a riding lawn mower (Tr. 245). Finally, Plaintiff told Karen Hampton,
Ph.D., that she had worked 12-hour days prior to becoming disabled (Tr. 353), but reported to
the agency that she worked 8-hour days (Tr. 200). Cf. Karlix v. Barnhart, 457 F.3d 742, 748 (8th
Cir. 2006) (contradictions between claimant=s sworn testimony and what she actually told
physicians weighs against claimant=s credibility).
Third, Plaintiff reported that medication helped her pain. Conditions which can be
controlled by treatment are not disabling. See Renstrom v. Astrue, 680 F.3d 1057, 1066 (8th Cir.
2012) (quoting Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010)); Davidson v. Astrue, 578
F.3d 838, 846 (8th Cir. 2009); Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009); Schultz v.
Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (holding that if an impairment can be controlled by
treatment, it cannot be considered disabling); Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir.
2002); Murphy, 953 F.2d 383, 384 (8th Cir. 1992); Warford v. Bowen, 875 F.2d 671, 673 (8th
Cir. 1989) (holding that a medical condition that can be controlled by treatment is not disabling);
James for James v. Bowen, 870 F.2d 448, 450 (8th Cir. 1989). Specifically, a May 7, 2009
progress note states that Plaintiff reported an increase in the dosage of her medication was a
“breakthrough.” Tr. 411.
Fourth, Plaintiff’s testimony and statements to medical providers were inconsistent with
the record as a whole. Contradictions between a claimant=s sworn testimony and what she
actually told physicians weighs against her credibility. See Karlix, 457 F.3d at 748. For
example, Plaintiff testified she had crying spells two to three times a week (Tr. 69), but she told
Dr. Hampton that she did not usually cry (Tr. 355). Although Plaintiff testified 2005 disc
surgery gave her no relief (Tr. 37), Gurprett Padda, M.D., Plaintiff’s surgeon, reported that
Plaintiff had “immediate resolution of C6 radicular component pain.” Ex. 21F at 176.4 Also,
Plaintiff told doctors that she stopped working after her 2003 car accident (Tr. 307, 353), but her
earnings record reflects that she worked after that time (Tr. 178); in fact, she earned $20,664 in
2004 (Tr. 178).
Fifth, although Plaintiff said she used a wheelchair (Tr. 43, 215, 259), no such device was
ever prescribed by a doctor. See Raney v. Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005)
(finding medical records documented that claimant’s use of cane was medically necessary).
Sixth, as considered by the ALJ, Plaintiff did not comply with prescribed medical
treatment during the relevant period. Tr. 16. See Eichelberger, 390 F.3d at 589 (ALJ properly
considered that plaintiff cancelled several physical therapy appointments and that no physician
imposed any work-related restrictions on her) (citing Brown v. Chater, 87 F.3d 963, 965 (8th Cir.
1996) (holding that a claimant=s failure to comply with prescribed medical treatment and lack of
significant medical restrictions is inconsistent with complaints of disabling pain). In particular,
Sandra Hoffmann, M.D., reported on January 30, 2008, that “for whatever reason, [Plaintiff]
chose to stop [taking] Cymbalta when she started the Lyrica. She said she wanted to see what
the Lyrica did by itself.” Tr. 350.
Seventh, as considered by the ALJ, despite Plaintiff’s complaint of neck pain, she did not
return to the surgeon who performed her cervical surgery; and, despite her claim of ongoing
sleep problems, Plaintiff did not seek further treatment for sleep apnea to confirm that her CPAP
was working correctly (Tr. 44, 69). Also, Plaintiff does not cite any medical records reflecting
she had treatment from September 1, 2005, until December 3, 2007, (Doc. 16 at 4), despite
This exhibit was not assigned a page number in the administrative record.
claiming she was disabled during that period. Ex. 31F,5 Tr. 319. See Roberts v. Apfel, 222 F.3d
466, 469 (8th Cir. 2000) (lack of regular treatment for alleged disabling conditions detracts from
claimant=s credibility); Comstock v. Chater, 91 F.3d 1143, 1146-46 (8th Cir. 1996) (ALJ
properly discounted claimant=s complaints of pain when medical evidence failed to establish
significant back problem).
Eighth, although Plaintiff contends a letter from her mother and observations of her
husband and daughter-in-law support her credibility, as considered by the ALJ, these family
members were not acceptable medical sources or considered other sources qualified to provide
evidence of the severity of a claimant’s conditions. See 20 C.F.R. '' 404.1513(d), 416.913(d)
(therapists and nurse practitioners are “other sources” whom may be used to show severity of
claimant’s impairments). As for the testimony of Plaintiff’s husband, an ALJ may discount the
testimony of a spouse because he has a financial stake in the outcome of the claimant=s case. See
Choate v. Barnhart, 457 F.3d, 865, 872 (8th Cir. 2006). Additionally, an ALJ may properly
discount opinions of third parties for the same reasons she discounts the opinion of a claimant,
including that the opinions are inconsistent with medical evidence of record. See Black v. Apfel,
143 F.3d 383, 387 (8th Cir. 2006).
Ninth, to the extent Plaintiff suggested she had a psychological impairment, she testified
she never had any counseling or therapy, and never was hospitalized for a mental impairment. In
response to the ALJ’s question as to whether she had ever seen a psychologist or psychiatrist,
Plaintiff responded, she “did way back but I don’t remember who it was.” Tr. 49. A lack of
regular treatment for an alleged disabling condition detracts from a claimant=s credibility. See
Roberts, 222 F.3d at 469; Comstock, 91 F.3d at 1146-46.
This exhibit was not assigned a page number in the transcript.
Tenth, as considered by the ALJ, objective medical testing did not support Plaintiff’s
allegations of disabling impairments. Tr. 17. See Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir.
2004) (lack of objective medical evidence is factor for ALJ to consider). For example, a
December 13, 2007 MRI of Plaintiff’s lumbar spine showed lumbar spine alignment was normal,
a slight narrowing at L5-S1, “fairly well hydrated” intervertebral discs at L1-L2 and L-2-L3,
degeneration at L3-L5 and L5-S1, a “small broad based protrusion” at L5-S1, and a “very mild
bulge” at L4-L5; the “remainder of the lumbar intervertebral discs [did] not demonstrate any
evidence of bulging or focal protrusion and there [was] no evidence of central spinal canal
stenosis at any of the levels examined.” Tr. 324. Also, a December 3, 2007 x-ray of the lumbar
spine showed “slightly exaggerated lordotic curvature but otherwise relatively unremarkable.
Disc spaces [were] well preserved. Vertebral height, contour, and alignment [were] normal.
There [was] some very minimal early osteophytes at L3 and 4, but they [were] very small and
unlikely to impinge neural foramina.” The impression was a “basically normal L-spine.” Tr.
315. A November 11, 2010 x-ray of Plaintiff’s lumbar spine showed a “slight calcification” in
the abdominal aorta anterior to L-4, and that Plaintiff’s lumbar spine was “otherwise negative”
with no degenerative changes, fractures, dislocation or disc space narrowing; sacroiliac joints
were intact. Tr. 460. An x-ray of the cervical spine, on this same date, showed Plaintiff was
maintaining the neck in extension and normal alignment with no degenerative changes down to
C6. Tr. 461. Steed v. Astrue, 524 F.3d 872, 876 (8th Cir. 2008) (substantial evidence supported
ALJ’s decision that claimant had RFC to perform light work, where medical records indicated
she suffered mild degenerative changes in her back).
Eleventh, the ALJ considered doctors’ observations and findings. In July 2010, the status
of her back pain was “good,” and she had normal reflexes. Tr. 436. On November 11, 2010, no
limitation of motion was noted in her shoulders, elbows, wrists, and hips; her grip and extremity
strength was 5/5, bilaterally; and she had some limitation of motion in both the lumbar and
cervical spine. Tr. 464-65. On November 19, 2010, Plaintiff was well-developed and wellnourished; in her extremities, she had no clubbing, cyanosis, or edema; her gait was normal; she
could heel-toe walk; her sensation was equal and normal bilaterally in her legs; she could flex
her back to sixty degrees; and her grip was good. Tr. 459. See Halverson v. Astrue, 600 F.3d
922, 933 (8th Cir. 2010) (doctor’s observations were inconsistent with claimant’s allegations of
In conclusion, the court finds that the ALJ properly considered Plaintiff’s credibility and
that the ALJ’s decision, in this regard is based on substantial evidence and consistent with the
Regulations and case law.
Medical Evidence and Plaintiff’s RFC:
Plaintiff contends the ALJ did not properly consider the medical evidence when
determining Plaintiff’s RFC. The court finds that Plaintiff is incorrect; as discussed above in
regard to Plaintiff’s credibility, prior to determining Plaintiff’s RFC, the ALJ did consider the
medical evidence of record, including the observations of doctors and diagnostic test results.
Further, as discussed below, the ALJ considered reports of Plaintiff’s treating, examining, and
The ALJ also considered a Physical RFC Assessment of Plaintiff conducted by Harold
Kearnes, M.D., in April 2009, and held that this assessment should have less than controlling
weight. Tr. 18. Dr. Kearnes reported that Plaintiff had post-traumatic fibromyalgia, and noted
that records of Plaintiff’s physical examinations had shown normal range of motion except for
the cervical spine; imaging studies had shown minor degenerative disease of both feet and the
lumbar spine; records of Plaintiff’s physical examinations showed normal range of motion
except for the cervical spine; and imaging studies showed minor degenerative disease in both
feet and lumbar spine. Dr. Kearnes’ RFC assessment was that Plaintiff could perform less than a
full day’s work and that she was very limited in what she could do, going back to February 2005.
To the extent Dr. Kearnes opined Plaintiff could do less than a full day’s work, Dr.
Kearnes was not Plaintiff’s treating doctor and relied on the records of others and Plaintiff’s
subjective reports of pain.
See 20 C.F.R. '' 404.1527(f)(2)(ii), 416.927(f)(2)(ii)
evaluating opinion of state agency physician, ALJ will weigh consultant’s findings using
relevant factors in paragraphs (a) through (e) in 20 C.F.R. ' 404.1527 and ' 416.927). The court
finds, therefore, that substantial evidence supports the ALJ’s determination that Dr. Kearnes’
opinion was not entitled to controlling weight.
The ALJ also considered a September 25, 2009 RFC evaluation conducted by Kenneth E.
Ross, D.O., who treated Plaintiff since 2004, and declined to give Dr. Ross’ opinion controlling
weight. Tr. 18. Dr. Ross opined that Plaintiff was incapable of low stress jobs; she could sit for
30 minutes, walk for 10 minutes, and sit and stand/walk for less than 2 hours in an 8-hour
workday; she could never lift 10 pounds; she needed to take unscheduled breaks 8 times in a
workday and rest for 30 minutes before returning to work; she would be absent from work more
than 4 days a month; and she needed to lie down for more than 4 hours in an 8-hour workday.
Dr. Ross also opined that Plaintiff’s depression affected her physical conditions. Tr. 424-28.
Upon failing to give controlling weight to Dr. Ross’ opinion regarding Plaintiff’s
limitations, the ALJ considered that Dr. Ross’ opinion was not linked to the medical evidence.
Tr. 18. The court notes that there is no diagnostic testing which supports Dr. Ross’ opinion. See
Veal v. Bowen, 833 F.2d 693, 699 (7th Cir. 1987) (where diagnoses of treating doctors are not
supported by medically acceptable clinical and laboratory diagnostic techniques, the court need
not accord such diagnoses great weight). See also Travis v. Astrue, 477 F.3d 1037, 1041 (8th
Cir. 2007) (AIf the doctor=s opinion is inconsistent with or contrary to the medical evidence as a
whole, the ALJ can accord it less weight.@); Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir.
2009) (AIt is permissible for an ALJ to discount an opinion of a treating physician that is
inconsistent with the physician's clinical treatment notes.@); Cox v. Barnhart, 471 F.3d 902, 907
(8th Cir. 2006) (ALJ may give a treating doctor=s opinion limited weight if it is inconsistent with
Indeed, Dr. Ross reported that Plaintiff had chronic back pain on numerous occasions,
including in December 2008 (Tr. 393), January 2009 (Tr. 393), April 2009 (Tr. 411), January
2010 (Tr. 444), February 2010 (Tr. 445), July 2010 (Tr. 447), and November 2010 (Tr. 455), but
Dr. Ross’ records reflecting Plaintiff had pain are largely based on Plaintiff’s subjective
complaints. See McCoy v. Astrue, 648 F.3d 605, 617 (ALJ properly discounted doctor’s opinion
where evaluation was based, at least in part, on claimant’s self-reported symptoms; insofar as
claimant’s self-reported symptoms were found to be less than credible, doctor’s report was
rendered less credible).
Although Dr. Ross reported that Plaintiff’s limitations were based on problems with her
lumbar and cervical spine (Tr. 424), as discussed above, Plaintiff’s most recent x-ray of the
lumbar spine was negative for degenerative changes except for a slight calcification (Tr. 460),
and her most recent x-ray of the cervical spine showed Plaintiff was maintaining the neck in
extension and normal alignment with no degenerative changes down to C6. (Tr. 461). See Veal
v. Bowen, 833 F.2d 693, 699 (7th Cir. 1987) (where diagnoses of treating doctors are not
supported by medically acceptable clinical and laboratory diagnostic techniques, such diagnoses
should not be afforded great weight).
To the extent Dr. Ross opined that Plaintiff had
psychological limitations, Dr. Ross’ treatment notes do not reflect such limitations, and Dr. Ross
never referred Plaintiff for any mental health treatment. See Davidson v. Astrue, 578 F.3d 838,
842 (8th Cir. 2009) (AIt is permissible for an ALJ to discount an opinion of a treating physician
that is inconsistent with the physician's clinical treatment notes.@); Hacker v. Barnhart, 459 F.3d
934, 937 (8th Cir. 2006) (where treating physician=s notes are inconsistent with his or her RFC
assessment, controlling weight should not be given to the RFC assessment).
To the extent Dr. Ross indicated by checkmarks on a form that Plaintiff was unable to
work, a treating physician=s checkmarks on a form are conclusory opinions which can be
discounted if contradicted by other objective medical evidence. See Stormo v. Barnhart, 377
F.3d 801, 805-06 (8th Cir. 2004); Hogan, 239 F.3d at 961; SSR 96-2p, 1996 WL 374188 (July 2,
1996). Although Dr. Ross stated that Plaintiff needed a cane to walk (Tr. 426), he never
prescribed one nor does the record reflect that any other doctor did so.
The court finds,
therefore, that the ALJ’s failure to give controlling weight to Dr. Ross’ opinion is based on
substantial evidence and consistent with the case law and Regulations.
Further, the ALJ did give some weight to Dr. Ross’ opinion as he limited Plaintiff to light
and sedentary work which presumes serious limitations. See Choate v. Barnhart, 457 F.3d 865,
869-70 (8th Cir. 2006) (limitations imposed by ALJ, as reflected in the claimant=s RFC,
demonstrated that ALJ gave some credit to opinions of treating physicians); Ellis v. Barnhart,
392 F.3d 988, 994 (8th Cir. 2005) (AIn assessing [the claimant=s] RFC, the ALJ determined that
[the claimant] could sit for a total of six hours and stand for a total of two hours, but was limited
to sedentary work. This in itself is a significant limitation, which reveals that the ALJ did give
some credit to [the treating doctor=s] medical opinions.@).
The court finds, therefore, that
substantial evidence supports the ALJ’s determination not to give controlling weight to Dr. Ross’
opinion, and that the ALJ’s decision, in this regard, is consistent with the Regulations and case
The ALJ also considered the April 2008 opinion of the state agency medical consultant,
Aine Kresheck, Ph.D., who opined that Plaintiff had mild limitations in regard to activities of
daily living and maintaining social functioning and had moderate difficulties in the areas of
concentration, persistence, and pace. Tr. 369. The ALJ gave some weight to Dr. Kresheck’s
opinion regarding Plaintiff’s concentration, persistence, and pace, but did not give it controlling
weight because it was inconsistent with Plaintiff’s ability to perform activities of daily living and
her ability to function socially; specifically, as discussed above in regard to Plaintiff’s credibility.
Tr. 16. Further, while state agency consultants are highly regarded for their expertise, see 20
C.F.R. '' 404.1527(f)(2)(i), 416.927(f)(2)(i), an ALJ is not bound by the opinions of state
agency medical or psychological consultants, see 20 C.F.R. '' 404.1527(f)(2)(i),
The court finds, therefore, that ALJ gave sufficient reason for failing to
controlling weight to Dr. Kresheck’s opinion and that his decision, in this regard, is based on
Further, as for Plaintiff’s fibromyalgia, the ALJ considered that Sandra Hoffman, M.D.,
who saw Plaintiff for a rheumatology consultation, on December 3, 2007, diagnosed Plaintiff
with this condition. Dr. Hoffman reported on this date that Plaintiff’s hands and wrists were
unremarkable; her elbows and shoulders were mildly tender; and she had moderate limitation of
the C-spine, and full range of motion without pain in her hips. Tr. 17, 307-308.
As for Plaintiff’s back pain, July 2010 records from St. Anthony’s Medical Center reflect
that after Plaintiff presented with back pain, she said she felt better and wanted to go home. Tr.
435-36. Plaintiff was seen on November 11, 2011, for back pain by Stanley London, M.D. Dr.
London reported that Plaintiff’s chief complaint related to her neck and back. As stated above,
Dr. London reported that Plaintiff’s extremities had no clubbing, cyanosis, or edema; her gait
was “fairly normal”; she could heel and toe walk and squat; she could not hop; and she had
difficulty getting on and off the examining table due to her size. Dr. London reported that a
detailed orthopedic and neurological examination of Plaintiff showed her knee jerks, ankle jerks,
biceps, triceps and brachial radialis reflexes were equal and active bilaterally; her sensation was
equal, bilaterally, in her legs; her straight leg raising was 60 degrees, bilaterally, and produced
some pain; she could flex her back to 60 degrees; she had tenderness in the right lower area of
her back; her neck movement was mildly restricted; her grip was good and her sensation normal;
and her distal pulses were good. Dr. London also noted Plaintiff’s blood pressure was 129/71.
See Brown v. Heckler, 767 F.2d 451, 453 (8th Cir. 1985) (blood pressure which measures within
range of 140-180/90-115 is considered mild or moderate; hypertension does not qualify as severe
where it does not result in damage to the heart, eye, brain or kidney) (citing 20 C.F.R. pt. 404,
subpt, P, app. 1, 4.00 C). Additionally, Dr. London noted that Plaintiff was moderately obese at
62 inches tall and 227 pounds. See SSR 02-01p, 2000 WL 628049, at *2-5 (“There is no specific
weight or BAI that equates with a ‘severe’ or a ‘not severe’ impairment. . . . Rather, we will do
an individualized assessment of the impact of obesity on an individual=s functioning when
deciding whether the impairment is severe.”). Tr. 459.
As for Plaintiff’s sleep apnea, on December 19, 2007, it was reported that she had
moderate obstructive sleep apnea, which appeared to be responsive to positive airway pressure.
See Brown, 611 F.3d at 955; Davidson, 578 F.3d at 846. Also, in January 2008, Plaintiff’s sleep
apnea was reported as moderate and better. Tr. 347.
As for any mental impairments, in April 2008, Karen Hampton, Ph.D., who saw Plaintiff
for a consultive examination in April 2008, reported that Plaintiff was oriented and could
understand and follow simple directions, while her concentration, pace and persistence for more
complex directions was moderately impaired; her verbal reasoning was intact; she had average
intelligence and was capable of independently managing any funds awarded her; and Plaintiff’s
judgment in safety situations and social reasoning were intact. Dr. Hampton also reported that
Plaintiff continued to engage in codependent caretaking relationships which added degrees of
stress to her life and adaptive coping behavior. Tr. 353-57. See Dunahoo v. Apfel, 241 F.3d
1033, 1039-40 (8th Cir. 2001) (depression was situational and not disabling because it was due
to denial of food stamps and workers compensation and because there was no evidence that it
resulted in significant functional limitations). Dr. Hampton opined that Plaintiff had a Global
Assessment of Functioning (GAF) of 57, which was in the moderate range.6 Tr. 356.
Global assessment of functioning (AGAF@) is the clinician=s judgment of the individual=s overall
level of functioning, not including impairments due to physical or environmental limitations.
See Diagnostic and Statistical Manual of Mental Disorders, DSM-IV, 30-32 (4th ed. 1994).
Expressed in terms of degree of severity of symptoms or functional impairment, GAF scores of
31 to 40 represent Asome impairment in reality testing or communication or major impairment in
several areas, such as work or school, family relations, judgment, thinking, or mood,@ 41 to 50
represents Aserious,@ scores of 51 to 60 represent Amoderate,@ scores of 61 to 70 represent Amild,@
and scores of 90 or higher represent absent or minimal symptoms of impairment. Id. at 32. See
also Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010) (A[A] GAF score of 65 [or 70] ... reflects
>some mild symptoms (e.g. depressed mood or mild insomnia) OR some difficulty in social,
occupational, or school functioning ... but generally functioning pretty well, has some
meaningful interpersonal relationships.=@) (quoting Kohler v. Astrue, 546 F.3d 260, 263 (2d Cir.
2008) (quoting Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 34
(4th ed. 2000)) (alterations in original). See also Goff, 421 F.3d at 791, 793 (affirming where
court held GAF of 58 was inconsistent with doctor’s opinion that claimant suffered from extreme
limitations; GAF scores of 58-60 supported ALJ’s limitation to simple, routine, repetitive work).
Although Athe Commissioner has declined to endorse the GAF scale for >use in the Social
Security and SSI disability programs,= ... GAF scores may still be used to assist the ALJ in
As required by the Regulations and case law, upon determining Plaintiff’s RFC, the ALJ
considered all relevant, credible evidence in the record, including the medical records,
observations of Plaintiff’s physicians and others, and Plaintiff’s own description of her
limitations. See Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004); Anderson v. Shalala, 51
F.3d. 777, 779 (8th Cir. 1995). The ALJ moved analytically, from ascertaining the true extent of
Plaintiff’s impairments to determining the kind of work she could still do despite her
impairments. The ALJ gave detailed consideration to the medical evidence of record before
determining Plaintiff’s RFC. See Lauer, 245 F.3d at 704 (although assessing claimant=s RFC is
primarily the ALJ’s responsibility, “claimant's residual functional capacity is a medical
question”) (quoting Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000)). 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.
Indeed, the ALJ identified Plaintiff’s functional limitations and restrictions, and then
assessed her work-related abilities on a function-by-function basis. See Masterson, 363 F.3d at
737; Harris v. Barnhart, 356 F.3d 926, 929 (8th Cir. 2004). Upon doing so, the ALJ was
required only to include 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.@).
Only after defining Plaintiff=s limitations and restrictions did the ALJ conclude that Plaintiff=s
restrictions did not preclude her from engaging in sedentary work with the additional limitations
assessing the level of a claimant's functioning.@ Halverson v. Astrue, 600 F.3d 922, 930-31 (8th
Cir. 2010) (quoting 65 Fed. Reg. 50746, 50764-65, 2000 WL 1173632 (Aug. 21, 2000), and
citing Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002) (AWhile a GAF score
may be of considerable help to the ALJ in formulating the [residual functional capacity], it is not
essential to the RFC's accuracy.@).
included in her RFC. The court finds that the ALJ’s RFC determination is based on substantial
evidence in the record as a whole and consistent with the requirements of the Regulations and
Hypothetical to VE:
The ALJ posed a hypothetical to a VE which included the limitations included in the
RFC which the ALJ assigned to Plaintiff, and which described a person of Plaintiff’s age and
with her education. The VE responded that the person described in the hypothetical could
perform work as a sticker, stuffer, and weight tester. Tr. 281. Plaintiff argues the ALJ posed an
improper hypothetical to the VE.
An ALJ posing a hypothetical to a VE, however, is not required to include all of a
claimant=s limitations, but only those which she finds credible. See Martise v. Astrue, 641 F.3d
909, 927 (8th Cir. 2011) (AThe ALJ's hypothetical question to the vocational expert needs to
include only those impairments that the ALJ finds are substantially supported by the record as a
whole.@) (quoting Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir.2006)); Guilliams v. Barnhart,
393 F.3d 789, 804 (8th Cir. 2005) (a proper hypothetical sets forth impairments supported by
substantial evidence and accepted as true by the ALJ); Gilbert v. Apfel, 175 F.3d 602, 604 (8th
Cir. 1999) (AIn posing hypothetical questions to a vocational expert, an ALJ must include all
impairments he finds supported by the administrative record.@); Sobania v. Sec=y of Health,
Educ. & Human Servs., 879 F.2d 441, 445 (8th Cir. 1989); Rautio v. Bowen, 862 F.2d 176, 180
(8th Cir. 1988). The hypothetical is sufficient if it sets forth the impairments which are accepted
as true by the ALJ. See Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999) (ALJ need not
include complaints in hypothetical when complaints are not supported by substantial evidence);
Hunt v. Massanari, 250 F.3d 622, 625 (8th Cir. 2001); Sobania, 879 F.2d at 445; Roberts v.
Heckler, 783 F.2d 110, 112 (8th Cir. 1985). Where a hypothetical question precisely sets forth
all of the claimant=s physical and mental impairments, a VE’s testimony constitutes substantial
evidence supporting the ALJ=s decision. Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011)
(ABased on our previous conclusion ... that >the ALJ's findings of [the claimant=s] RFC are
supported by substantial evidence,= we hold that >[t]he hypothetical question was therefore
proper, and the VE's answer constituted substantial evidence supporting the Commissioner=s
denial of benefits.=@) (quoting Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006)); Robson v.
Astrue, 526 F.3d 389, 392 (8th Cir. 2008) (holding that a VE=s testimony is substantial evidence
when it is based on an accurately phrased hypothetical capturing the concrete consequences of a
claimant=s limitations); Wingert v. Bowen, 894 F.2d 296, 298 (8th Cir. 1990). Because the court
has found the ALJ’s RFC determination is based on substantial evidence and because
hypothetical which the ALJ submitted to the VE included all of Plaintiff’s limitations which the
ALJ found credible and which she included in Plaintiff’s RFC, the court finds that the ALJ
submitted a proper hypothetical to the VE. Further, the court finds that the VE’s response that
there was work which Plaintiff could perform in the national economy provides substantial
evidence to support the ALJ’s denial of benefits to Plaintiff.
For the reasons set forth above, the court finds that substantial evidence on the record as a
whole supports the Commissioner’s decision that Plaintiff is not disabled.
IT IS HEREBY ORDERED that the relief sought by Plaintiff in her Complaint and
Brief in Support of Complaint (Docs. 1, 16) is DENIED;
IT IS FURTHER ORDERED that a separate judgment be entered incorporating this
Memorandum and Order.
Dated this 14th day of July, 2014.
/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE
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