Thompson v. Colvin

Filing 26

MEMORANDUM - For the reasons set forth above, the decision of the Commissioner of Social Security is affirmed. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 3/18/15. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CATHERINE THOMPSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Defendant.

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No. 4:13 CV 2487 DDN

MEMORANDUM
This action is before the court for judicial review of the final decision of defendant
Commissioner of Social Security denying the application of plaintiff Catherine
Thompson for supplemental security income benefits under Title XVI of the Social
Security Act (the Act), 42 U.S.C. § 1381, et seq. The parties have consented to the
exercise of plenary authority by the undersigned United Magistrate Judge pursuant to 28
U.S.C § 636(c). For the reasons set forth below, the decision of the Administrative Law
Judge (ALJ) is affirmed.

I. BACKGROUND
Plaintiff Catherine Thompson, who was born in 1966, filed an application for Title
XVI benefits on January 4, 2011. (Tr. 162-67.) She alleged a disability onset date of
March 2, 2010, due to auditory hallucinations, severe depression and suicidal thoughts,
cardiovascular disease, hypertension, chronic headaches, and dizzy spells. (Tr. 230.) Her
application was denied initially on March 29, 2011, and she requested a hearing before an
ALJ. (Tr. 100-04, 109-11.)

On August 24, 2012, following a hearing, the ALJ found that plaintiff was not
disabled. (Tr. 6-22.) On November 14, 2013, the Appeals Council denied her request for
review. (Tr. 1-4.) Thus, the decision of the ALJ stands as the final decision of the
Commissioner.

II. MEDICAL HISTORY
On September 5, 2004, plaintiff met with Muha Azharuddin, M.D., at Pemiscot
Memorial Hospital in Hayti, Missouri, with a chief complaint of a headache.

She

reported that her headache was extreme, and that she was seeing black spots. Plaintiff
further reported that she had run out of Fioricet, used to treat tension headaches. Plaintiff
was prescribed Darvocet N for pain. (Tr. 394.) On September 8, 2004, plaintiff was seen
at Pemiscot Primary Care Center stating that she needed refills for headache medication.
(Tr. 460.)
On February 16, 2005, plaintiff met with Abdullah Arshad, M.D., at Pemiscot
Memorial Hospital with complaints of severe headache and associated distress,
photophobia (sensitivity to light), and phonophobia (sensitivity to loud sounds). Plaintiff
reported that she had run out of Fioricet. Dr. Arshad refilled her Fioricet prescription.
Dr. Arshad diagnosed “disabling migraine headaches” and hypertension.

(Tr. 456.)

Plaintiff was seen at Pemiscot Memorial Hospital two more times for her migraines
during February 2004. (Tr. 391, 455.)
On March 16, 2005, plaintiff met with Dr. Arshad for follow-up. He diagnosed
migraines and hypertension. Dr. Arshad informed plaintiff that he could not prescribe
more Fioricet “until it’s time” and scheduled a follow-up. Plaintiff saw Dr. Arshad again
on April 5, 2005 and he refilled her Fioricet prescriptions. (Tr. 453-54.)
On April 5, 2005, plaintiff saw Dr. Arshad for her migraine headaches and to
request a Fioricet refill. (Id.)
On May 6, 2005, plaintiff was admitted to Pemiscot Memorial Hospital for
epistaxis (bloody nose), migraine headaches, and uncontrolled hypertension. She was
started on pain medication for her headaches and her epistaxis was controlled. A CT scan
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of the brain found no significant abnormalities. Dr. Arshad noted that he suspected
plaintiff was abusing her pain medication. She was discharged the following day. (Tr.
411-13, 421.)
On May 8, 2005, plaintiff was admitted again to Pemiscot Memorial Hospital for
epistaxis, severe migraines, uncontrolled hypertension, and depression. Her headaches
and blood pressure were brought under good control and she was discharged the
following day. Dr. Arshad noted that he questioned the objectivity of her complaints.
(Tr. 465-67.)
Plaintiff saw Dr. Arshad on May 26, 2005 for follow-up.

Plaintiff still had

headaches and was unable to afford Fioricet at that time. (Tr. 450.) Plaintiff was seen
nine more times for her headaches during 2005. (Tr. 362, 442-46, 448, 450, 523, 531.)
Plaintiff saw doctors seventeen times regarding her headaches in 2006. (Tr. 34042, 355-56, 437-43, 463, 472-73.) She underwent four CT scans of her head in 2006, all
of which were normal. (Tr. 471-74.)
On January 14, 2007, plaintiff was seen in the Pemiscot Memorial Hospital
emergency room for a migraine headache.
abnormalities.

(Tr. 292-93.)

A CT scan revealed no significant

Plaintiff sought medical treatment for her headaches

approximately five times during 2007. (Tr. 427-31, 541, 546.)
On November 26, 2007, plaintiff was seen at Saint Louis University Care for
counseling for depression. She denied any auditory, visual, or tactile hallucinations at
that time. (Tr. 580-82.)
During 2008, plaintiff sought treatment for her headaches four times. (Tr. 424-26,
549.)
On June 6, 2009, plaintiff was seen at Barnes Jewish Hospital emergency room in
St. Louis, Missouri, complaining of a migraine headache after running out of her Fioricet
two days earlier. (Tr. 558-63.)

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On January 24, 2010, plaintiff was seen in the Barnes Jewish Hospital emergency
room complaining of a headache after running out of her migraine medication. (Tr. 584,
588-90.)
On February 27 and October 25, 2010, plaintiff saw Lavert Morrow, M.D., for
headaches. Dr. Morrow prescribed butalbital/acetaminophen/caffeine tablets, the generic
equivalent of Fioricet. Plaintiff denied any additional symptoms in association with her
headaches (Tr. 652-53.)
On January 29, 2011, plaintiff was seen at the emergency department at Barnes
Jewish Hospital for a headache after running out of medication.

She denied any

additional symptoms in association with her headache. (Tr. 852-57.)
Plaintiff saw Dr. Morrow on February 4 and March 21, 2011. He noted that her
headaches returned if she was out of medication for two weeks. Dr. Morrow diagnosed
tension headaches and hypertension, and prescribed butalbital/acetaminophen/caffeine.
Plaintiff described fatigue and phonophobia in association with her headaches. (Tr. 87274.)
On March 17, 2011, plaintiff was seen by licensed psychologist Lynn Mades,
Ph.D., for a psychological evaluation regarding her disability claim. Plaintiff described
auditory hallucinations, severe depression and suicidal thoughts, cardiovascular disease,
chronic headaches, and dizzy spells during this meeting. Plaintiff stated that she was
hearing the voices of her deceased family members. Plaintiff reported significant weight
loss that she associated with these hallucinations. Dr. Mades noted that there were
inconsistencies in plaintiff’s account of hallucinations, and stated that plaintiff may have
been embellishing symptoms.

Dr. Mades determined that plaintiff’s complaints of

auditory hallucinations were marginally credible at best. Dr. Mades diagnosed plaintiff
with major depressive disorder, single episode, mild, and described her prognosis as fair
to good with appropriate intervention. (Tr. 729-33.)
On March 29, 2011, Marc Maddox, Ph.D., submitted a Psychiatric Review
Technique form. He found that plaintiff’s medically determinable impairments consisted
of major depressive disorder, single episode, mild. He stated that plaintiff suffered mild
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restriction with daily living activities, mild difficulty with maintaining social functioning,
and mild difficulty with maintaining concentration, persistence, or pace. (Tr. 734-45.)
On March 29, 2011, Dr. Maddox also submitted a Mental Residual Functional
Capacity (RFC) Assessment. He concluded that plaintiff was moderately limited in her
ability to understand and remember detailed instructions; to carry our detailed
instructions; to maintain attention and concentration for extended periods; to work in
coordination with or proximity to others without being distracted by them; and to interact
with the general public. He believed she retained the ability to understand, remember,
and carry out simple work instructions; to maintain adequate attendance and an ordinary
routine without special supervision; to interact adequately with peers and supervisors in a
work setting where demands for social interaction are not primary job requirements; and
to adapt to most usual changes in a competitive work setting. (Tr. 746-48.)
On April 9, 2011, plaintiff was seen in the emergency room at Barnes Jewish
Hospital with a headache after she had run out of Fioricet. Sean Fitzmaurice, M.D.,
prescribed Fioricet. She had come to the emergency room because she could not see her
primary care provider for a refill at that time. Plaintiff reported feeling much better
following the administration of Fioricet. (Tr. 790-95.)
On April 22, 2011, plaintiff was seen at St. Mary’s Health Center Emergency
Department with a migraine headache and needing to refill her migraine medicine. She
had run out migraine medicine and was unable to see her doctor until the following week.
Plaintiff was administered Fioricet and discharged. (Tr. 753-56, 876.)
On April 25, 2011, plaintiff saw Dr. Morrow for a tension headache associated
with phonophobia and photophobia.

Dr. Morrow noted that plaintiff reported her

headaches were much better with medications. (Tr. 871.)
On July 2, 2011, plaintiff was admitted to the emergency department at Barnes
Jewish Hospital with a headache after running out of medication. She was prescribed
Fioricet and discharged. (Tr. 771-76.)
On July 5, 2011, plaintiff saw Dr. Morrow for a check-up. Dr. Morrow noted that
plaintiff admitted to persistent headaches after running out of medication. She was
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diagnosed with tension headaches associated with phonophobia and photophobia. (Tr.
869.)
On August 3, 2011, plaintiff saw Dr. Morrow for follow-up. She was diagnosed
with tension headaches and hypertension. She reported improvement with Fiorinal, used
to treat tension headaches. (Tr. 868.)
On September 7, 2011, plaintiff was admitted to the emergency department at
Barnes Jewish Hospital for a refill of her headache medication.

She denied any

additional symptoms in association with her headache. Chandra Aubin, M.D., prescribed
Fioricet, and plaintiff reported feeling much better with medication. (Tr. 892-98.)
On December 16, 2011, plaintiff was admitted to the emergency department at
Barnes Jewish Hospital for a medication refill. Plaintiff denied any additional symptoms
in association with her headache. Dr. Fitzmaurice prescribed Fioricet. (Tr. 918-24.)
On December 21, 2011, plaintiff saw Dr. Morrow for a refill of her prescriptions,
including Fioricet. (Tr. 947.)
On March 5, 2012, plaintiff saw Dr. Morrow for a check-up. Plaintiff reported
feeling somewhat better with Fiorinal. Dr. Morrow noted that plaintiff felt well, was
taking medications as prescribed, and had no headache at that time. Her hypertension
was ok at that time. (Tr. 945.)
On June 4, 2012, plaintiff saw Dr. Morrow for a follow-up. Dr. Morrow noted
that plaintiff felt well, had no headache, and was compliant with medication. Dr. Morrow
further noted that plaintiff’s headaches were persisting, but that she received some relief
with medication. (Tr. 943.)

Testimony at the Hearing
On July 11, 2012, plaintiff, represented by counsel, appeared and testified to the
following at a hearing conducted by an ALJ. (Tr. 39-67.) She was 46 years old. She
dropped out of high-school in the ninth grade and has not obtained a GED. (Tr. 43.) She
has a limited ability to spell and perform basic math.

She never received special

education, but was held back several grades in school, and describes herself as slow.
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She has never obtained a driver’s license. She has twelve children but does not have
custody of them due to termination of her parental rights. She has never used drugs. She
has previously used alcohol but does not currently drink. She previously received SSI for
a period of three years due to depression. (Tr. 50-58.)
She last worked from February 2009 to March 2010 as a self-employed babysitter
for her grandchildren. She discontinued this employment when her daughter resumed
full-time care of her children. She worked as a temporary employee in 2009 performing
janitorial services. (Tr. 43-46.) She received one month of job training to learn to roll
newspapers in 1999. (Tr. 60-61.) She cannot work because she suffers from severe
headaches. She has seen, her treating physician, Dr. Morrow, for her headaches for 19
years. (Tr. 52.) She receives Medicaid for birth control only. (Tr. 54.)
She attributes her headaches to high blood pressure. During a headache, she has
weakness, dizziness, sensitivity to noise, alterations to her vision, and is not able to hold
her head up. She does not experience nausea during her headaches. She receives
temporary relief from her headaches by running cold water over her head. Her headaches
are diminished with medication. (Tr. 46, 52.)
She has experienced auditory hallucinations for three to four years. She hears her
mother and deceased daughter speaking to her.

She sometimes hears these voices

through her television. She previously received treatment at a mental health facility, but
has discontinued the treatment because it is not covered by Medicaid. She has crying
spells approximately twice a month due to thoughts about her deceased family members
and loss of custody of her children. She has suicidal thoughts. She maintains personal
hygiene with the assistance of her daughter. Her headaches have increased in severity
following a blow to her head in 1996. (Tr. 52-57.)
Vocational Expert (VE) Thomas Reed also testified to the following at the
hearing. Plaintiff’s last job was as a babysitter, a semi-skilled job. As performed by
plaintiff, it was a light exertion level job. Prior to her job as a babysitter, she worked as a
janitor, which is medium and unskilled work.

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The ALJ questioned the VE about a hypothetical individual with an eighth grade
education, the same work history as plaintiff, no physical limitations, and who could
retain and understand simple instructions, sustain an ordinary routine without special
supervision, interact with peers and supervisors, should maintain interaction with the
public only occasionally, and is able to adapt to usual changes common in a competitive
work setting. The VE testified that such a person would be unemployable as a babysitter
but would be employable as a janitor. (Tr. 61-62.)
The ALJ presented a second hypothetical scenario that was identical to the first,
except that the individual would be limited to environments without concentrated
exposure to noise, vibrations, and hazards. This hypothetical limitation was designed to
simulate the reported limitations of plaintiff’s headaches. The VE responded that such a
person could not perform plaintiff’s past relevant work but could perform work as an
electrical or electronics assembler at an unskilled and light exertion level. Additionally,
the VE stated that the hypothetical individual could be employed as a light assembly
worker or fabricator, which is unskilled, light work. The VE responded that such an
individual could be employed as a hand packer or packager.
Plaintiff’s attorney then posed a third hypothetical, with the additional limitation
that the claimant would be required to leave their workstation for 30 minutes a day that
could not be accommodated by breaks. The VE testified that such a claimant might be
able to secure employment, but not able to maintain it. (Tr. 62-66.)

III. DECISION OF THE ALJ
On August 24, 2012, the ALJ issued a decision that plaintiff was not disabled.
(Tr. 6-22.) At Step One, the ALJ found that plaintiff had not engaged in substantial
gainful activity since January 4, 2011, her alleged onset date. At Step Two, the ALJ
found that plaintiff’s depression was a severe impairment. The ALJ found no indication
that plaintiff’s headaches limited her ability to function. The ALJ found that plaintiff
received conservative treatment for her headaches and
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they were controlled with

medication, and were therefore not a severe impairment. At Step Three, the ALJ found
that plaintiff had no impairments or combination of impairments that met or was the
medical equivalent of an impairment on the Commissioner’s list of presumptively
disabling impairments. (Tr. 11-12.); see 20 C.F.R. pt. 404, subpt. P, app. 1.
The ALJ found that plaintiff had the residual functional capacity (RFC) to perform
a full range of work at all exertional levels but with additional nonexertional limitations.
She retained the ability to understand, remember, and carry out simple, repetitive tasks.
She could maintain attention and routine instructions without supervision, could interact
with peers and supervisors but only occasionally with the public. She should avoid
concentrated exposure to noise, vibrations, and hazards.
At Step Four, the ALJ found that plaintiff was unable to perform her past relevant
work. (Tr. 13-15.) At Step Five, the ALJ found that plaintiff was capable of performing
jobs existing in significant numbers in the national economy. (Tr. 16.)

IV. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and
are supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564
F.3d 935, 942 (8th Cir. 2009). “Substantial evidence is less than a preponderance, but is
enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Id. In determining whether the evidence is substantial, the court considers
evidence that both supports and detracts from the Commissioner's decision. Id. As long
as substantial evidence supports the decision, the court may not reverse merely because
substantial evidence exists in the record that would support a contrary outcome or
because the court would have decided the case differently. See Krogmeier v. Barnhart,
294 F.3d 1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove she is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
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expected to last for at least twelve continuous months. 42 U.S.C. §§ 423(a)(1)(D),
(d)(1)(A), 1382c(a)(3)(A); Pate-Fires, 564 F.3d at 942. A five-step regulatory framework
is used to determine whether an individual is disabled. 20 C.F.R. §§ 404.1520(a)(4); see
also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the five-step process);
Pate-Fires, 564 F.3d at 942 (same).
Steps One through Three require the claimant to prove (1) she is not currently
engaged in substantial gainful activity, (2) she suffers from a severe impairment, and (3)
her disability meets or equals a listed impairment. 20 C.F.R. §§ 404.1520(a)(4)(i)-(iii).
If the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to Steps Four and Five.

Step Four requires the

Commissioner to consider whether the claimant retains the RFC to perform her past
relevant work (PRW). Id. § 404.1520(a)(4)(iv). The claimant bears the burden of
demonstrating she is no longer able to return to her PRW. Pate-Fires, 564 F.3d at 942. If
the Commissioner determines the claimant cannot return to PRW, the burden shifts to the
Commissioner at Step Five to show the claimant retains the RFC to perform other work
that exists in significant numbers in the national economy.

Id.;

20 C.F.R. §

404.1520(a)(4)(v).

V. DISCUSSION
Plaintiff argues that the ALJ erred (1) in finding that her headaches were not a
severe impairment, (2) in making his RFC assessment, and (3) in posing a hypothetical
question that did not accurately represent the concrete circumstances of her impairment.

A. Plaintiff’s Headaches
Plaintiff argues that the ALJ at Step Two erred in finding that plaintiff’s headaches
were not a severe impairment. This court disagrees.
At Step Two of the evaluation process, the ALJ must determine if a claimant
suffers from a severe impairment. Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).
The claimant bears the burden of proving her impairment or combination of impairments
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is severe, but the burden is not a heavy one, and any doubt concerning whether the
showing has been made must be resolved in favor of the claimant. Id.; Dewald v. Astrue,
590 F. Supp.2d 1184, 1200 (D.S.D. 2008). “Severity is not an onerous requirement for
the claimant to meet, but it is also not a toothless standard. . . .” Kirby, 500 F.3d at 707.
A severe impairment is an impairment or combination of impairments that
significantly limits a claimant’s physical or mental ability to perform basic work
activities. See 20 C.F.R. §§ 416.920(c), 416.921. An impairment is not severe if it
amounts to only a slight abnormality and does not significantly limit the claimant’s
physical or mental ability to do basic work activities. Kirby, 500 F.3d at 707; 20 C.F.R. §
416.921(a).

Basic work activities concern the abilities and aptitudes necessary to

perform most jobs. 20 C.F.R. § 416.921(b). Examples of basic work activities include:
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3)
understanding, carrying out, and remembering simple instructions; (4) use of judgment;
(5) responding appropriately to supervision, co-workers, and usual work situations; and
(6) dealing with changes in a routine work setting. Id. The sequential evaluation process
terminates at Step Two if the impairment has no more than a minimal effect on the
claimant’s ability to work. Kirby, 500 F.3d at 707; Hudson v. Bowen, 870 F.2d 1392,
1396 (8th Cir. 1989.
Here, the ALJ determined that plaintiff’s headaches were not a severe impairment
because they did not cause any limitations on plaintiff’s ability to work. The record
indicates that the ALJ’s conclusion of non-severity is supported by substantial evidence.
The ALJ concluded that plaintiff’s headaches did not significantly limit her ability to
perform basic work activities because they were controlled with medication, were treated
conservatively, and no objective tests showed abnormalities.
At the hearing before the ALJ plaintiff testified that medication helped control her
headaches. (Tr. 47.) Plaintiff repeatedly reported to her doctors that her headache
condition was improved with medication. (Tr. 653, 794, 868, 871-72, 875, 898, 943,
945.) Plaintiff admitted at multiple medical appointments that her headaches returned
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when she ran out of medication. (Tr. 558, 588-89, 600, 605, 653, 775, 794, 852, 855,
869, 873, 876, 892, 894, 897, 918, 922, 947.)
The ALJ also found that plaintiff’s headaches were non-severe because the
objective findings from her examinations were generally normal or minimal. Plaintiff
received multiple CT scans of her head and brain, all of which found no significant
abnormalities. (Tr. 11, 292-93, 305, 421, 471-74.) Plaintiff also usually denied other
symptoms in association with her headaches. (Tr. 614, 653, 775-76, 855, 868, 871-72,
875, 892, 943, 945.)

The ALJ found it significant that plaintiff was seen in the

emergency room on seven different occasions since January 2010, but was discharged
without being admitted to the hospital each time. (Tr. 11, 588-90, 753-56, 771-76, 85257, 871, 876, 892-98, 918-24.) Moreover, there is no record evidence that plaintiff ever
saw a specialist for her headaches. Further, plaintiff did not require any significant
intervention other than medication to treat her headaches. (Tr. 11-12.) See e.g., Brown
v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010) (impairments that can be controlled by
medication cannot be considered disabling). See e.g., Martise v. Astrue, 641 F.3d 909,
924 (8th Cir. 2011) (affirming ALJ’s decision that headaches were non-severe in part
because medication controlled her symptoms).
The undersigned concludes the record contains substantial evidence indicating that
plaintiff’s headaches were controlled with conservative treatment consisting of
medication. Therefore, the ALJ did not err in finding that plaintiff’s headaches were not
a severe impairment.

B. Residual Functional Capacity (RFC)
Plaintiff argues that the ALJ’s RFC assessment is not supported by substantial
evidence. RFC is defined as the most that a claimant can still do despite her physical or
mental limitations. 20 C.F.R. § 416.945(a). Some medical evidence must support an
ALJ’s RFC assessment, but the ALJ is not limited to considering medical evidence
exclusively. See Cox v. Astrue, 495 F.3d 614, 619-20 (8th Cir. 2007). “The ALJ
determines a claimant’s RFC based on all relevant evidence, including medical records,
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observations of treating physicians and others, and the claimant’s own descriptions of his
or her limitations.” Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). The
burden of persuasion to prove disability and demonstrate RFC is on the plaintiff. See
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005). An RFC assessment is ultimately an
administrative determination reserved to the Commissioner, not a medical professional.
See Cox, 495 F.3d at 619-20.
The ALJ is not obligated to rely entirely on a medical opinion to formulate a
claimant’s RFC. See Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011). Although an
ALJ’s RFC determination must be supported by some medical evidence, an ALJ is not
limited to such evidence. See Cox, 495 F.3d at 619. An ALJ should consider all relevant
evidence, including medical records, observations from treating physicians, and the
claimant’s subjective statements about his limitations. Eichelberger v. Barnhart, 390
F.3d 584, 591 (8th Cir. 2004). When considering the RFC of a claimant with a severe
impairment that does not meet or equal a listed impairment, the ALJ must consider the
limiting effects of all of the claimant’s impairments, including those that are non-severe.
See 20 C.F.R. § 404.1545(e). The ALJ must consider the impairments individually and
in combination when determining the claimant’s RFC. See Raney v. Barnhart, 396 F.3d
1007, 1011 (8th Cir. 2005). It is proper for an ALJ to consider a claimant’s daily
activities when formulating the claimant’s RFC. See Green v. Astrue, 390 F. App’x 620,
622 (8th Cir. 2010). Further, an ALJ may discredit a claimant’s subjective statements if
they are inconsistent with the claimant’s daily activities. See Medhaug v. Astrue, 578
F.3d 805, 817 (8th Cir. 2009).
In this case, the ALJ determined that plaintiff had the RFC to perform a full range
of work at all exertional levels, but that she had several non-exertional limitations. (Tr.
13.) The ALJ properly considered plaintiff’s non-severe impairment of headaches when
determining her RFC by imposing non-exertional limitations concerning her exposure to
noise, vibrations, and hazards. (Tr. 11, 13.) Plaintiff argues that her headaches justified
additional work-related limitations, but does not cite any medical evidence to support this
assertion. Plaintiff presented no record evidence to support greater limitations on RFC
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than those imposed by the ALJ and therefore her assertions regarding her limitations do
not undermine the ALJ’s analysis.
The ALJ considered the medical records, the observations of plaintiff’s treating
physicians, and plaintiff’s subjective statements about her headaches. (Tr. 11, 13-15.)
Despite the lack of a supporting medical opinion regarding limitations imposed by
plaintiff’s headaches, the ALJ properly considered the medical evidence. See, e.g., Steed
v. Astrue, 524 F.3d 872, 876 (8th Cir. 2008) (ALJ’s RFC determination was proper when
supported by some medical evidence, despite silence of evidence on the work-related
limitations imposed by medical condition); Cox, 495 F.3d at 619-20 (despite lack of
medical opinion that assessed claimant’s work limitations, treatment notes provided
substantial medical evidence to support RFC assessment). In considering all of the
relevant evidence, the ALJ properly considered plaintiff’s non-severe condition of
headaches when formulating her RFC. Further, plaintiff failed to meet her burden of
persuasion regarding RFC because she failed to present evidence of additional limitations
caused by her headaches.
Plaintiff also argues that the ALJ erred in assessing her RFC by relying on her
own statements about her daily activities which included performing her own personal
care, cleaning house, walking, shopping, performing household chores, and watching
television. The ALJ determined that the activities plaintiff performed supported his
conclusion that plaintiff could perform simple, repetitive tasks in a non-public setting
despite her severe impairment of depression. (Tr. 15.) Plaintiff also claimed that her
mental impairment prevented her from working. The ALJ noted, however, that plaintiff’s
daily activities were inconsistent with her claim. This court concludes the ALJ properly
considered evidence of plaintiff’s daily activities as a factor in formulating her RFC.
Accordingly, plaintiff’s argument is without merit.

C. ALJ’s Hypothetical
Plaintiff next argues that the ALJ erred by posing a hypothetical question that did
not accurately represent the concrete circumstances of plaintiff’s impairment.
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In the fifth step of the sequential analysis, the burden shifts to the Commissioner
to show that plaintiff could perform other work existing in significant numbers in the
national economy. See 20 C.F.R. § 416.920(a)(4)(v). A VE’s testimony constitutes
substantial evidence if it is based on a correctly phrased hypothetical that captures the
concrete circumstances of the claimant’s deficiencies. See Cox v. Astrue, 495 F.3d 614,
620 (8th Cir. 2007). The hypothetical must include only those impairments that the ALJ
finds are substantially supported by the record as a whole. See Renstrom v. Astrue, 680
F.3d 1057, 1067 (8th Cir. 2012).

The ALJ is not required to adopt unsupported,

unsubstantiated, subjective, or self-imposed limitations of the plaintiff when questioning
the vocational expert. Perkins v. Astrue, 648 F.3d 892, 902 (8th Cir. 2011).
Here, the ALJ questioned the VE about a hypothetical claimant with the same age,
education, experience, and RFC as plaintiff. The VE testified that such a claimant would
be employable. The ALJ posed a second hypothetical, adding the conditions that the
claimant should avoid concentrated exposure to noise, vibrations, and hazards. The VE
opined that such a claimant would also be capable of performing jobs available in
significant numbers in the national economy. Plaintiff’s attorney then posed a third
hypothetical, with the additional condition that the claimant would be required to leave
her workstation for 30 minutes a day that could not be accommodated by breaks. The VE
determined that such a claimant might be able to secure employment, but unable to
maintain it. (Tr. 16, 61-65.)
Plaintiff asserts that the ALJ’s hypotheticals did not accurately represent her
concrete circumstances because they failed to capture the effects of her headaches. Here,
the ALJ properly included impairments and limitations that were substantially supported
by the record evidence as a whole in his questions to the VE. As discussed above,
plaintiff’s headaches were properly considered in the calculation of her RFC. Further,
plaintiff’s subjective and self-imposed limitations regarding her work ability were
properly excluded from the ALJ’s hypothetical questions to the VE. There is no support
in the record for plaintiff’s assertion that additional limitations were warranted. The ALJ

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did not err in treating the VE’s testimony as substantial evidence.

Accordingly,

plaintiff’s argument is without merit.

VI. CONCLUSION
For the reasons set forth above, the decision of the Commissioner of Social
Security is affirmed. An appropriate Judgment Order is issued herewith.

/S/ David D. Noce
k
UNITED STATES MAGISTRATE JUDGE

Signed on March 18, 2015.

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