Wilson v. Colvin

Filing 24

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner be AFFIRMED. A separate Judgment in accordance with this Memorandum and Order is entered this same date.. Signed by Magistrate Judge Terry I. Adelman on 2/6/15. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ADRIENNE WILSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 4:14CV353 TIA

MEMORANDUM AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
This cause is on appeal from an adverse ruling of the Social Security Administration. The
suit involves Applications for Disability Insurance Benefits under Title II of the Social Security
Act and for Supplemental Security Income under Title XVI of the Act. Claimant has filed a Brief
in Support of her Complaint, and the Commissioner has filed a Brief in Support of her Answer.
The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).

I.

Procedural History
On April 10, 2008, Claimant Adrienne Wilson filed Applications for Disability Insurance

Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 313-16) and for Supplemental
Security Income payments pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381,
et. seq. (Tr. 310-12).1 Claimant states that her disability began on January 1, 2006,2 as a result of
1

"Tr." refers to the page of the administrative record filed by the Defendant with her Answer
(Docket No. 13/filed May 2, 2014).
2

Although Claimant originally alleged an onset date of August 1, 2008 in her applications, she
amended her onset date to July 24, 2009. (Tr. 15).

fibromyalgia, knee and hand problems, multiple screws in her right ankle, migraine headaches,
depression, stress, loss of hand function, and limited ability to sit, stand, walk, and lift her arms
overhead. (Tr. ). On initial consideration, the Social Security Administration denied Claimant's
claims for benefits. (Tr. 146-51). Claimant requested a hearing before an Administrative Law
Judge (“ALJ”). On December 8, 2009, a hearing was held before the ALJ who issued an
unfavorable decision on June 8, 2010. (Tr. 34-65, 105-16).3 Claimant filed a request for review
with the Appeals Council on September 29, 2011. (Tr. 404-05). The Appeals Council vacated the
hearing decision and remanded this matter back to the ALJ in a decision dated February 13, 2012.
(Tr. 122-27). On May 23, 2012, a supplemental hearing was held before the ALJ who issued an
unfavorable decision on October 12, 2012. (Tr. 17-27, 66-101).4 After considering the mental
residual functional capacity completed by Dr. Loon-Tzian Lo on June 15, 2013, the Appeals
Council found no basis for changing the ALJ’s decision on January17, 2014. (Tr. 1-4).5
II.

Evidence Before the ALJ
A. Hearing on December 8, 2009
1. Claimant's Testimony
3

Claimant testified and was represented by counsel. (Id.). Vocational Expert Delores
Gonzalez and Medical Expert Philip Toops also testified at the hearing. (Tr. 59-64, 197-200).
4
Claimant testified and was represented by counsel. (Id.). Vocational Expert Jeffrey
Magrowski and Medical Experts Anne Winkler and James Reid also testified at the hearing. (Tr.
74-100, 214-32).
5
In finding the additional medical records did not provide a basis for changing the ALJ’s
decision, it noted how the records reflect medical treatment Claimant received after the ALJ
issued his decision, and therefore the records do not affect the ALJ’s decision about whether she
was disabled beginning on or before October 12, 2012. See e.g., Roberson v. Astrue, 481 F.3d
1020, 1026 (8th Cir. 2007) (finding no error in Appeals Council’s decision that new records
prepared seven months after ALJ’s decision described claimant’s condition on date records were
prepared, not on earlier date, and consequently were not material).
-2-

At the hearing on December 8, 2009, Claimant testified in response to questions posed
by the ALJ and counsel. (Tr. 34-65). At the time of the hearing, Claimant was forty-three years
of age, and her date of birth is February 19, 1966. (Tr. 39). Claimant lives in a house with her
mother and sometimes her daughter’s apartment.

(Tr. 39). She is right-handed and graduated

from high school. (Tr. 41). Claimant stands at five feet six inches and weighs two hundred fortytwo pounds. (Tr. 41). She receives $59 a month from the housing authority and food stamps.
(Tr. 42). Claimant smokes ten to fifteen cigarettes each day. (Tr. 50). Claimant testified that Dr.
Ali, her rheumatologist, told her to use a cane. (Tr. 50). On occasion she uses marijuana. (Tr.
51). Although she has a valid driver’s license, she does not drive. (Tr. 52).
Claimant testified that she last worked at Bon Appetite as a cashier in 2005. (Tr. 42). She
left the job because of her left knee surgery. (Tr. 43). She had worked in the job for almost three
years. Earlier, she worked at Maximum Healthcare Services as a certified nurse assistant and then
at K-Force Incorporated Subsidiaries. (Tr. 43). She also worked at Unity Healthcare and B.C.
Home Care Services as a certified nurse assistant. (Tr. 44). Earlier, Claimant worked at National
and then at Schnucks as a cashier and sometimes food prep. (Tr. 44).
Claimant testified that she can no longer work because of her fibromyalgia and two bad
knees. (Tr. 47). A rheumatologist started treating her fibromyalgia two years earlier, and she
takes Lyrica and Gabapentin. She was diagnosed with a sporadic colon in 2006. (Tr. 47).
Claimant has had surgery on both of her knees. (Tr. 48). After surgery, she could not work for a
while. (Tr. 48). Claimant started taking Celexa as treatment for depression one year earlier, and
she has seen a psychiatrist and a therapist for one year, once a month. (Tr. 49). She testified that
her medications make her drowsy and sometimes triggers headaches. (Tr. 50). Claimant started
-3-

using a cane after the first knee surgery. (Tr. 50). She had rotator cuff surgery in 2004. (Tr. 54).
Claimant has crying spells every day or every other day. (Tr. 56). She is fatigued and lacks
energy. (Tr. 57).
Claimant testified that she can dress in the morning with some assistance. (Tr. 52). She
does not wash dishes, do the laundry, or vacuum. (Tr. 53). Sometimes she goes to the grocery
store with her mother or daughter but not for a long period of time. (Tr. 53).
Claimant does her own laundry and cooking. (Tr. 49). Her mother helps her with the
grocery shopping. (Tr. 50). She cannot stand for a long period of time. (Tr. 50). Two weeks
earlier, she started to wear a brace provided by pain management. (Tr. 51). Two months earlier,
she received a shot as treatment. (Tr. 52). Her mother visits twice a week and helps care for her
daughter. (Tr. 55).
Claimant can stand against a wall for five to ten minutes. (Tr. 54). On a good day, she
can walk without assistance from the house to the car. Sitting is difficult, she has to shift often
and prop up her leg. (Tr. 54). She has problems lifting smaller objects. (Tr. 55).
B. Hearing on May 23, 2012
1. Claimant's Testimony
At the hearing on May 23, 2012, Claimant testified in response to questions posed
by the ALJ and counsel. (Tr. 66-101). She testified that her conditions have worsened, and she
now walks with two canes since January. (Tr. 70). She has not used marijuana for over a year.
(Tr. 73).

2. Testimony of Vocational Expert

-4-

Vocational Expert Dr. Jeffrey Magrowski testified at the hearing. (Tr.91-100 ). Dr.
Magrowski identified Claimant’s vocational history as a cashier for food service, a light, unskilled
job; a certified nurses aide, a heavy, semiskilled job; and a cocktail waitress, a medium, semiskilled
job. (Tr. 93). He listed her transferrable skills as including communication, scheduling, use of
some medical equipment, and some basic clerical skills. (Tr. 94).
The ALJ asked Dr. Magrowski to assume that
a hypothetical individual with the claimant’s education, training, work experience
at the time of AOD, further assume the individual can, for my first hypothetical,
this individual can perform light work. They can lift 20 pounds occasionally, 10
pounds frequently, stand and walk six hours out of eight, no limits on sitting,
following other limitations, climb stairs and ramps occasionally, never climb ropes,
ladders, scaffolds, balance frequently, stoop, kneel, crouch, crawl, occasionally.
This individual must avoid concentrated exposure to extreme cold, wetness, heat
and the sun, humidity and hazards of heights. This individual can understand,
remember, carry-out at least simple instructions, non-detail task, demonstrate
adequate judgment to make simple work related decisions, adapt to routine, simple
work changes, perform repetitive work according to set procedures sequence and
pace. Based on my first hypothetical, could the individual perform any past work?
(Tr.94). Dr. Magrowski indicated she could perform some cashiering work, a light and unskilled
job with at least 6.000 jobs in Missouri and over 300,000 jobs available nationally; and some work
as an usher, light and unskilled with 1,000 jobs available in Missouri and over 50,000 available in
the national economy. (Tr. 95).
The ALJ next asked Dr. Magrowski the following:
... second hypothetical same as the hypothetical one except I did make a change in
the mental limitations. This individual can maintain concentration and attentions
for two hour segments over an eight hour period, demonstrate adequate judgment
to make simple work related decisions, adapt to routine simple work changes, can
perform work at a normal pace without production quotas. Would that individual
be able to perform the jobs you gave me for hypothetical one?
(Tr. 95). Dr. Magrowski responded yes. (Tr. 95).
-5-

For the third hypothetical, he ALJ asked Dr. Magrowski the following:
My third hypothetical I drop to sedentary and that’s just a straight sedentary. All
other limitations remain the same as hypothetical two so it’s, I just changed from
the light to the sedentary, straight sedentary. Would that impact the jobs, it would
because they’re both light. Are there any jobs? If so, give me two if yo have them.
(Tr. 95-96). Dr. Magrowski opined there would be some work as a surveillance system monitor
with 300 jobs in Missouri and 10,000 jobs available in the national economy; and a stuffer of toys
or small items with about 400 jobs in Missouri and 10,000 jobs available in the national economy.
(Tr. 96). In his fourth hypothetical, the ALJ added the individual would need two additional
breaks beyond the normal two breaks and lunch break. Dr. Magrowski opined this individual
would require special accommodations. (Tr. 96).
Counsel asked Dr. Magrowski to assume the limitations of Dr. Saleh as follows:
Assume we have a person who is only able to sit for two hours at a time, could
walk a half a block, could stand and/or walk less than two hours in an eight hour
work day, sit about two hours in an eight hour work day, would need periods of
walking around during an eight hour working day every 45 minutes for about five
minutes at a time, would need a position that allowed shifting positions at will
from sitting, standing or walking, would need to take unscheduled breaks during
an eight hour day, that would be unpredictable. Could rarely lift, lift less than 10
pounds and never 10 pounds or more, could rarely twist, stoop, crouch, squat and
would miss about four days of work per month. With those limitations would the
individual be capable of past work or any other work?
(Tr. 96-97). Dr. Magrowski indicated he did not know of any work. (Tr. 97).
Counsel asked Dr. Magrowski to assume Dr. Morris’ report:
... this person could occasionally lift up to 10 pounds, never 11 pounds or more
and could never carry up to 10 pounds. The individual could only sit for 15
minutes at a time, stand for 10 minutes at a time and walk for 10 minutes at a time
for a total of only two hours in an eight hour work day of sitting, 30 minutes of
standing and 15 minutes of walking and would need a cane to ambulate, must
never reach overhead with either the left or right hand and never to reach in all
other directions with the left or right hand, never push or pull, never to use foot
-6-

controls on the right but occasionally use foot controls on the left, who is never to
climb stairs, ramps, ladders, scaffolds, balance, stoop, kneel, crouch or crawl,
never work at unprotected heights, moving mechanical parts or operating a motor
vehicle. With those limitations would anybody be capable of past work or other
work?
(Tr. 97). Dr. Magrowski responded no and noted elevation of legs is not allowed in competitive
employment. (Tr. 97). Dr. Magrowski explained that an individual would have to remain on task
and meet the expectations of the employer at least 95% of the time to be viewed as successful.
(Tr. 98).
3. Testimony of Medical Experts Dr. Anne Winkler and Dr. James Reid
Dr. Anne Winkler is board certified in internal medicine and rheumatology. (Tr. 74). Dr.
Winkler testified that a review of the medical record shows Claimant has irritable bowel
syndrome, probable fibromyalgia, chondromalacia patella, mild osteoarthritis in her knees, obesity,
sjogren’s syndrome, diabetes controlled by diet, and rheumatoid arthritis. (Tr. 76-77). Based on
her review of the record, Claimant could not equal any listing. (Tr. 78). Dr. Winkler opined she
was not comfortable making the diagnosis of actual fibromyalgia without additional physical
examination findings such as any positive control point. (Tr. 79). Dr. Winkler noted how the
medical records do not reflect a doctor prescribing the use of one or two canes, and she would
not prescribe any canes. (Tr. 79-80).
Based on the documented data, Dr. Winkler found Claimant able to lift or carry twenty
pounds occasionally, ten pounds frequently; she could stand or walk six hours in an eight-hour
workday; and she has not limits with respect to sitting. (Tr. 80). Her postural limitations would
include occasional stairs; never use ladders, ropes, or scaffolds; frequent balance, bend and
occasional stooping, kneeling, crouching, and crawling. Dr. Winkler found she does not have any
-7-

manipulative, visual, or communicative limitations. With respect to environmental limitations, Dr.
Winkler found she should avoid unprotected heights, concentrated exposure to sun or cold, wet
and some humidity. (Tr. 80).
Dr. James Reid, a clinical psychologist, found Claimant to have borderline intellectual
functioning and depression and to be noncompliant off and on. (Tr. 87). Dr. Reid also included
cannabis abuse in May 2009. (Tr.88). Dr. Reid opined Claimant would not meet or equal any
listing, and he agreed with the state agency on the psychiatric review technique finding mild
limitations on daily activities, mild on social functioning, and moderate on concentration,
persistence, and pace and none on episodes of decompensation. (Tr. 88).
III.

Medical Records and Other Records
To obtain disability insurance benefits, Claimant must establish that she was disabled

within the meaning of the Social Security Act not later than the date her insured status expired March 31, 2010. Pyland v. Apfel, 149 F.3d 873, 876 (8th Cir. 1998) (“In order to receive
disability insurance benefits, an applicant must establish that she was disabled before the
expiration of her insured status.”); see also 42 U.S.C. §§ 416(I) and 423(c); 20 C.F.R. § 404.131.
Dr. Steven Johnson performed a hysterectomy on June 4, 2002 to relieve her pelvic
pressure. (Tr. 482). Dr. Johnson found Claimant to be quite well oriented in time and space.
(Tr. 482).
The January 26, 2006 Body Bone Scan showed mildly increased uptake of
radiopharmaceutical at T7 to T8 probably degenerative in nature, increased uptake at left knee
may be postoperative or secondary to osteoarthritic change, increased at right knee secondary to
arthritis, and increased uptake at sternum and AC joints. (Tr. 460, 604).
-8-

On May 11, 2006, Dr. Reyna Caldwell completed an initial evaluation and then follow-up
treatment at St. Louis University Rheumatology Clinic. (Tr. 553). She reported one month
earlier she noticed bilateral hand pain and swelling but prior to then, she had no problems with her
hands. She underwent arthrocentesis, and she did not have any evidence of rheumatoid arthritis.
At the initial visit, she presented stating that she was her for a second opinion of this diagnosis.
(Tr. 553). Musculoskeletal examination showed diffuse tenderness of all the small joints of her
left hand, bilateral wrists, left elbow, and bilateral second, third, and fourth MTPs, but she had no
active synovitis in any of these joints. (Tr. 554). Her grip strength was assessed to be 100%
bilaterally. Dr. Caldwell listed positive rheumatoid factor, arthalgias, myalgias, and fatigue, and
elevated sedimentation rate as her impression. When she returned, Claimant had not had the xrays requested, but she did have the laboratory evaluation. (Tr. 555). Dr. Sona Kamat found she
most likely has a Sjogren’s/lupus like overlap syndrome, prescribed Plaquenil, and requested she
follow up in three months for further evaluation. (Tr. 555).
On May 25, 2006, Dr. David Kiefer performed an arthroscopy, chondral abrasion,
abrasion of arthroplasty of medial femoral condyle, and resection of medial synovial plica. (Tr.
492-93). Her past medical history included arthritis, borderline diabetes, endometriosis,
gastroesophageal reflux disease, and irritable bowel syndrome. (Tr. 494). She had right knee
trace effusion, a positive McMurray sign, and medial joint line tenderness. (Tr. 494). Right
medial meniscus tear was the pre-procedure diagnosis. (Tr. 495).
Claimant presented in the emergency room on February 7, 2007 for evaluation of
abdominal pain, and she reported having a history of sjogren’s syndrome, endometriosis,
hysterectomy, orthopedic left and right knee surgeries, and genitourinary disease, and no previous
-9-

psychiatric history. (Tr. 582). The psychiatric examination showed her to be oriented 3 and to
have a normal affect. (Tr. 583). She was observed as having a steady gait. (Tr. 587).
On April 13, 2007, Claimant established care with Dr. John Lautenschlager and
complained of muscle spasm, joint pain, and abdominal pain. (Tr. 640). Dr. Lautenschlager
found her mental status to be alert, and her gait to be limping. (Tr. 641). His mental status
examination made findings of oriented x3, and appropriate mood and affect. (Tr. 642). Dr.
Lautenschlager found her bilateral musculoskeletal movements to be painful. (Tr. 643). In
follow-up on May 8, she returned for blood draw and complained of intermittent swelling in her
feet and hands. (Tr. 638).
On May 11, 2007 on referral from South County, Claimant complained of pain all over her
body and being diagnosed with sjogrens syndrome and mentioned lupus. (Tr. 531). She is not
taking any depression medications. (Tr. 532). The musculoskeletal examination showed no
muscle tenderness. (Tr. 533). Dr. Ali observed her gait and stance to be normal. (Tr. 533). Dr.
Ali found Claimant to have arthralgias in multiple sites. (Tr. 534).
On June 5, 2007, Claimant presented with complaints of fatigue and in response to a
nurse’s call. (Tr. 632). On June 8, Dr. Lautenschlager ordered further blood testing. (Tr. 631).
In follow-up treatment on June 26, she reported falling yesterday and hurting her back and hip
and requested pain medications for the pain. (Tr. 628). She also experiences fatigue during
exertion, and this interferes with her daily activities, and the symptoms have not been associated
with depression or history of psychiatric illness. Musculoskeletal examination showed back pain
and joint swelling appeared to be reduces since taking prednisone. (Tr. 628). Dr. Lautenschlager
prescribed oxycodone as treatment for the bruised ribs and back from her fall. (Tr. 629).
- 10 -

During treatment on June 22, 2007, Claimant reported lower back pain and left knee pain
but she has no other verbal complaints. (Tr. 525). Dr. Ali noted how she started taking
diclofenac twice daily with some relief and improvement of joint swelling in her left hand since
last visit. (Tr. 526, 685). Dr. Ali noted she has good exercise habits including ortho exercises for
her knees such as tread mill and stair master and exercising regularly. (Tr. 526, 685).
Examination of her back showed no costovertebral angle tenderness, her cervical, thoracic, and
lumbar spines exhibited no muscle spasms, and no muscle tenderness observed. (Tr. 528). Dr.
Ali observed her mood not to be anxious and her gait to be abnormal with limping noted on the
right side. His assessment included multiple joint disorder and discussed the etiology of her
complaints and prescribed a trial of prednisone once a day. (Tr. 528).
On July 20, 2007, Claimant reported pain in her lower back and improvement in her left
knee. (Tr. 519). Dr. Ali treated her one month earlier for polyarthralgias and positive RF and
gave her a trial of prednisone, and she reported marked improvement in joint swelling but she
stopped taking prednisone two weeks earlier. (Tr. 520). After she stopped taking prednisone,
she did well for two weeks but then she noticed pain in her fingers. (Tr. 520). She reported being
disabled for the last two years. (Tr. 521). She is not fatigued. (Tr. 521). Examination of her
cervical spine and thoracic spine showed no muscle spasms and lumbar spine exhibited muscle
spasms. (Tr. 522). Dr. Ali observed her gait to be abnormal, an antaligic gait and found she has
normal hand grip bilaterally and a normal range of motion of hands bilaterally. (Tr. 522).
In the October 11, 2007 St. Louis Connect Care progress note, Claimant reported pain all
over her body. (Tr. 515, 681). Dr. Ali noted how she was last seen for possible rheumatoid
arthritis. (Tr. 516, 682). Claimant reported that she stopped taking prednisone one month earlier
- 11 -

and recently started taking lyrica for her fibromyalgia and after taking the medication for one
week she was doing well, but she ran out of the medication and currently has diffuse body pain.
(Tr. 516, 682). Musculoskeletal examination showed no muscle tenderness. (Tr. 518). Dr. Ali
found she had multiple tender points and may have some fibromyalgia component but no evidence
of synovitis. He encouraged her to exercise regularly. Dr. Ali observed her gait to be normal, her
hand grip to be normal bilaterally, and normal passive range of motion of her joints. (Tr. 518).
On November 15, 2007, she reported bilateral knee pain for two months. (Tr. 623).
Musculoskeletal examination revealed a decreased range of motion and movements to be painful
and crossed straight leg raising to be negative. (Tr. 624). Dr. Lautenschlager found she had no
pain in bilateral movement of her knees and a full range of motion and mild crepitus and patellar
crepitus. (Tr. 624). Dr. Lautenschlager noted her joint pain being treated by Saint Louis Connect
Care Rheumatology, prescribed oxycodone for pain, ordered x-rays of her knees, and referred her
to St. Louis Connect Care for orthopedics. (Tr. 625).
The November 27, 2007 x-rays of her knees showed mild osteoarthritis. (Tr. 679).
In the January 7, 2008 St. Louis Connect Care progress note, she reported pain in left
knee and check up on right knee. (Tr. 512, 675). The doctor suggested a cortisone shots as plan
of treatment. (Tr. 512, 675).
In follow-up treatment at St. Louis Connect Care on January 28, 2008, Claimant received
a cortisone shot injected into her right knee, and she complained of pain in both knees. (Tr. 510,
674). Physical examination showed a good range of motion and positive crepitus. (Tr. 510, 674).
On April 3, 2008, Claimant complained of lower abdominal pain and ongoing pain
problem. (Tr. 620, 803). Dr. Lautenschlager noted he should consider her fatigue to be caused
- 12 -

by clinical depression. (Tr. 621). In follow-up treatment on April 17, she denied any problems.
(Tr. 616). Claimant reported her fatigue is strongly related to situational stress. (Tr. 616). Dr.
Lautenschlager observed her to be mildly depressed, and the mental examination performed with
findings of oriented x3 with appropriate mood and affect. (Tr. 617). Dr. Lautenschlager referred
Claimant to Social Services for evaluation of situational stress problem, and he did not start any
medications. (Tr. 617). On April 28, she had a cortisone injection in her left knee. (Tr. 615,
672). She was scheduled to have another cortisone shot in three to four months. (Tr. 672).
On April 17, 2008, Claimant presented at North Central Community Center with
complaints of fatigue only during exertion and this interferes with activities of daily living. (Tr.
800). In the Mental Status examination, she is noted to be alert and mildly depressed and she is
oriented x3 with appropriate mood and affect. (Tr. 800). Dr. Lautenschlager referred her to St.
Louis Connect Care Rheumatology and prescribed Oxycodone. (Tr. 801).
On April 28, 2008, Claimant received a cortisone injection in her knee. (Tr. 799).
In the May 6, 2008 Rheumatology Progress Note at St. Louis Connect Care, Claimant
reported having pain all over her body and Neurontin helping with the pain, but she had been out
of Neurontin for two weeks. (Tr. 500). Examination showed her range of motion in her joints to
be normal and no muscular tenderness. She reported to be limping. The assessment included
fibromyalgia and rheumatoid arthritis. The examiner noted how Claimant needs to follow up with
a psychiatrist to evaluate her depression. (Tr. 500). Her gait was antaligic and cane use was
noted. (Tr. 501).
In follow-up treatment at St. Louis Connect Care on April 28, 2008, Claimant received a
cortisone shot injected into her left knee. (Tr. 509).
- 13 -

On May 6, 2008, Dr. Zarmeena Ali evaluated Claimant for left knee pain, lower back pain,
and slight headaches. (Tr. 502). She reported being out of Neurontin for the last weeks with
relief and off of plaquenil since her last visit but she did not realize she was to continue taking the
medication. (Tr. 502). She has good exercise habits and stretching lower back and hips as
prescribed by physical therapist. (Tr. 503). Claimant reported “ortho exercises for her knees
including the tread mill and stair master and exercising regularly” and “has been disabled for last
two years.” She is seeing a psychotherapist and has insomnia due to pain. (Tr. 503).
Examination of her lumbar spine revealed muscle spasms and muscle tenderness. (Tr. 504). Dr.
Ali observed limping in her gait and using a cane and her mood to be anxious and included in his
assessment “rheumatoid arthritis RF positive neg CCP no synovitis”and fibromyalgia. (Tr. 504).
In follow-up treatment on July 29, 2008, she reported having pain at the level of six out of
ten, but she has no other verbal complaints. (Tr. 757, 814). She reported being out of
gabapentin. (Tr. 757, 814). Dr. Ali observed her gait and stance and balance to be normal. (Tr.
758). His assessment included vitamin D deficiency, obesity, and osteoarthritis. (Tr. 759). Dr.
Ali prescribed Cymbalta for depression and provided a refill of gabapentin. (Tr. 759, 815).
On July 19, 2008, Dr. Grossberg at Jewish Children Family Center completed an adult
psychiatric evaluation, and she reported being frustrated since she stopped working three years
earlier. (Tr. 692). After her fiancé left two years earlier to work in Arkansas, her daughter
became pregnant and dropped out of college. She has no previous psychiatric diagnosis, although
she attempted suicide at age eighteen when she found out she was pregnant. (Tr. 692). She
admitted to using marijuana a couple times a month to help with her pain. (Tr. 693). She lives
with her daughter, son, and grandson. (Tr. 693). Dr. Grossberg diagnosed her with depression
- 14 -

and prescribed Cymbalta and noted she has financial stressors. (Tr. 695). On August 1, 2008,
she returned for follow up. (Tr. 691). She reported not being able to fill her prescription through
the county pharmacy, has not been feeling good, and rates her pain as 7/10. She has trouble with
her daughter due to financial stresses. Dr. Grossberg prescribed Celexa. (Tr. 691).
In the Physical Residual Functional Capacity Assessment completed on August 20, 2008,
Dr. Judith McGee listed knee osteoarthritis as her primary diagnosis and history of ankle and
shoulder, DJD, obese, and rheumatoid arthritis as other alleged impairments. (Tr. 697). Dr.
McGee found she can occasionally lift ten pounds, stand and/or walk for at least two hours in an
eight-hour workday, sit for about six hours in an eight-hour workday, stand for at least two hours
in an eight-hour workday, and unlimited in her ability to push/pull. (Tr. 699). In support, Dr.
McGee noted how the treatment notes show Claimant has been getting cortisone shots with good
improvement and range of motion. (Tr. 699). With respect to postural limitations, Dr. McGee
found Claimant cannot climb ladders, ropes or scaffolds, and can occasionally climb stairs,
balance, stoop, and kneel. (Tr. 700). She has not manipulative or visual limitations. (Tr. 700).
Dr. McGee noted Claimant should avoid concentrated exposure to extreme cold or heat,
vibration, and hazards. (Tr. 701).
In the Psychiatric Review Technique, Dr. McGee found Claimant to be moderately limited
in her ability to understand and remember detailed instructions and her ability to carry out detailed
instructions. (Tr. 703). Dr. McGee also found her to be moderately limited in her ability to
accept instructions and respond appropriately to criticism. (Tr. 704). Dr. McGee opined
Claimant must avoid all work involving intense or extensive interpersonal interactions such as
handling customer complaints and public contact. (Tr. 705). She found Claimant can understand,
- 15 -

remember, carry out, and persist at simple tasks, make simple work-related judgments, relate
adequately to coworkers or supervisors, and adust adequately to ordinary changes in work routine
or setting. (Tr. 705). In the Psychiatric Review Technique, Dr. McGee
Claimant to have affective disorders and moderate limitation in her ability in maintaining
concentration, persistence, or pace and mildly limited in her activities of daily living and
maintaining social functioning. (Tr. 714).
During treatment on August 29 2008, Claimant reported being upset “because she was
turned down for disability again.” (Tr. 732). She reported just started taking Celexa one week
earlier because she was afraid of the black box warning. Her pain has improved, and she has no
current substance abuse. Dr. Saleh noted how she is non complaint. (Tr. 731). In follow-up
treatment on September 26, 2008, she returned tearful after having seen a previous abuser, her
stepfather, the day before. (Tr. 731). Dr. Saleh increased her Celexa dosage. (Tr. 731). She
reported having pain and financial and social stressors that are keeping her down. Dr. Saleh
found Claimant to be stable and still having some depression and continued her Celexa regimen.
(Tr. 730).
On September 18, 2008, Claimant presented for annual examination and possible UTI.
(Tr. 793).
On September 30, 2008, Claimant presented at John Murphy Health Center complaining
of blurred vision and having rheumatoid like condition but she is not taking any specific
medication for this condition. (Tr. 790).
On October 3, 2008, Dr. Ali treated Claimant for right and left knee pain, and noted she
has no other verbal complaints. (Tr. 752, 811). Neurological examination showed her mood not
- 16 -

to be anxious. (Tr. 754). Dr. Ali assessed her with morbid obesity and fibromyalgia. Dr. Ali
opined her symptoms might be related to rheumatoid arthritis but she had no synovitis on
examination. (Tr. 754).
In the Mental Residual Functional Capacity Questionnaire completed on October 17,
2008, Dr. Saleh noted he has treated Claimant monthly since July 2008. (Tr. 718). Dr. Saleh
noted how she had been treated with antidepressant medications with minimal response. In the
Clinical Findings, Dr. Saleh opined how she has a depressed mood with minimal response to
medication. (Tr. 718). Dr. Saleh found Claimant would be unable to meet competitive standards
in working in coordination with or proximity to others and completing a normal workday and
work week without interruptions for psychologically based symptoms. (Tr. 720). Dr. Saleh
further found she would be seriously limited in understanding and remembering very short and
simple instructions, maintaining regular attendance, sustaining an ordinary routine, making simple
work-related decisions, and performing at a consistent pace without an unreasonable number of
rest periods. (Tr. 720). Dr. Saleh noted how she is exhibiting poor concentration, energy, and
depressed mood, and she has not responded to medications. (Tr. 720). Dr. Saleh further found
Claimant would be unable to meet competitive standards in understanding and remembering
detailed instructions, carrying out detailed instructions, and setting realistic goals. (Tr. 721).
The November 5, 2008 radiology results of both knees showed minimal degenerative joint
disease. (Tr. 749, 810).
On December 3, 2008 in follow-up treatment for knee pain, she reported not responding
to cortisone injections. (Tr. 745).
On December 9, 2008, Claimant presented at North Central Community Center
- 17 -

complaining of eye discharge. (Tr. 784). The doctor noted Claimant to be alert and oriented x4
and having normal posture. (Tr. 784).
On December 12, 2008, Claimant reported doing well and having run out of her
medication more than one week ago and starting to get depressed. (Tr. 729). Prior to running
out of her medication, she was less irritable, having less depression, feeling less anxious, and
having fewer outbursts. Claimant has fair energy and concentration. (Tr. 729).
In follow-up treatment for possible DJD at Connect Care on December 12, Claimant
reported pain in her hip and knees to Dr. Ali. (Tr. 741). She experiences increased sedation with
pain relief on Gabapentin and due to get a MRI on both knees for suspicion if meniscal tear. (Tr.
742). Her habits include good ortho exercises for her knees including tread mill and stair master
and exercising regularly. (Tr. 743). Dr. Ali observed limping on her gait. (Tr. 743). Dr. Ali
encouraged her to continue weight reduction and gave a trial of Lyrica and assistance in filling out
forms for drug company inasmuch as she has had great response in the past. (Tr. 744).
The January 19, 2009 MRI of her left knee showed multiple medial femoral condyle
cartilaginous defects with an osteochondral lesion and myxoid degeneration of the medial
meniscus without discrete meniscal tear. (Tr. 767).
In the January 20, 2009 Endoscopy Risk Assessment, Claimant reported not taking
narcotic pain medications for greater than six weeks. (Tr. 762).
In follow-up treatment on January 30, 2009, she reported being sad about her grandchild’s
father being killed, her mood being fair, poor energy level, and lack of motivation. (Tr. 728, 929).
She has experienced improvement with her pain since starting Lyrica. Dr. Saleh found that she
has some residual depression and added Wellbutrin to her medication regimen. (Tr. 728, 929).
- 18 -

The February 19, 2009 MRI of her left knee showed multiple femoral condyle
cartilaginous defects with an osteochondral lesion and myxoid degeneration of the medial
meniscus without discrete meniscal tear. (Tr. 806).
On March 13, 2009, she reported finding out her fiancé has been cheating on her, starting
to become depressed, and has not been taking her medications. (Tr. 928). Dr. Saleh restarted
Celexa and recommended continuing counseling. (Tr. 928).
On March 18, 2009, Claimant received an updated referral by Dr. Lautenschlager for a
cortisone injection in her left knee. (Tr. 919). Claimant missed her scheduled appointment in the
orthopedic clinic on April 15, 2009. (Tr. 922).
Dr. Ali treated Claimant on May 12, 2009, and she indicated no PAI as of today, and she
had no other verbal complaints or concerns. (Tr. 861, 907). Dr. Ali last treated her for obesity,
OA, and fibromyalgia. Claimant has had some improvement in muscle pain taking Lyrica and this
has helped her symptoms of muscle pain but she still has continued pain, joint stiffness and
numbness in her hands. Dr. Kiefer advised against knee surgery due to her age. (Tr. 861, 907).
Dr. Ali observed her gait and stance to be normal. (Tr. 909). The immunology studies revealed
nonspecific abnormal findings. (Tr. 909).
During treatment on May 15, 2009, she reported having poor energy and feelings of
hopelessness and fair concentration. (Tr. 927). She has an occasional use of cannabis and having
stopped taking her medication because she is concerned about weight gain. Dr. Saleh restarted
her Celexa and encouraged her to reinitiate psychotherapy. (Tr. 927).
On June 26, 2009, Dr. Saleh noted how her mood had somewhat improved with
antidepressants and therapy but she has been only partially compliant. (Tr. 926). Dr. Saleh noted
- 19 -

how Claimant stopped attending therapy and having fidelity issues with her fiancé. Dr. Saleh
found she has financial stress and relationship stress and assessed her GAF to be a 65. He
encouraged medication compliance and to restart therapy. (Tr. 926).
In the Mental Status examination on July 10, 2009, Dr. Saleh found Claimant to be alert
and oriented x3, and her mood to be fine. (Tr. 925). Dr. Saleh restarted Claimant on Celexa.
(Tr. 925).
On July 14, 2009, Claimant returned for treatment of obesity, fibromyalgia, and joint pain
but not having any pain on that day. (Tr. 876). Her habits include ortho exercises for her knees
including treadmill and stair master and exercising regularly. (Tr. 877). Dr. Ali observed her
gait and stance to be normal. (Tr. 878). She was encouraged to continue exercise and weight
reduction. (Tr. 878).
In the August 24, 2009 treatment note, Dr. Ali noted the TC bone scan showed arthritic
changes in left medial knee and right ankle. (Tr. 875).
On August 27, 2009, Claimant reported feeling betrayed by her boyfriend who might be
having a child with a woman in Arkansas. (Tr. 924). Her fibromyalgia symptoms were worse.
(Tr. 924). In follow-up treatment on October 16, Claimant just returned from visiting her fiancé
in Arkansas, and he is having a baby in February with another partner. (Tr. 923). She plans to
move to Arkansas and has applied for disability. Dr. Saleh noted she has good insight and
judgment. (Tr. 923).
During follow-up fibromyalgia treatment on November 3, 2009, she reported how Lyrca
helps her symptoms of pain. (Tr. 1017). Examination of her spine revealed no muscle spasms,
and Dr. Ali noted the straight-leg raising test to be negative. (Tr. 1019). Dr. Ali observed her
- 20 -

gait to be normal. Examination showed multiple tender point but no synovitis. (Tr. 1019). Dr.
Ali noted how she does not have any synovitis or symptoms of joint swelling or stiffness. (Tr.
1020).
Claimant missed her appointments scheduled on December 18, 2009 and February 26,
2010 at Connect Care. (TR. 1031-33).
In the Physical Residual Functional Capacity Questionnaire completed on January 14,
2010, Dr. Ali noted how he first treated Claimant in 2007, and he last treated her in November
2009. (Tr. 930). She has been diagnosed with vitamin deficiency, fibromyalgia, and a rheumatoid
factor. Dr. Ali identified as his clinical findings her reduced motor strength of all limbs due to
pain, depressed affect, and multiple tender points. (Tr. 930). Dr. Ali found her impairments
would occasionally interfere with attention and concentration to perform simple work tasks. (Tr.
931). Dr. Ali noted she can walk a half a block without rest, sit for two hours, and stand for one
hour. (Tr. 931). Dr. Ali opined how she would need a job permitting her to shift positions at will
and to take unscheduled breaks during the workday. (Tr. 932). Dr. Ali noted how she does not
use a cane or other assistive device, and she does not have significant limitations with reaching,
handling, or fingering. (Tr. 932-33). She would have to miss four days each month. (Tr. 933).
On February 11, 2010, Dr. Alan Morris completed an orthopedic evaluation after
reviewing the records from St. Louis Connect Care. (Tr. 935). Her chief complaints included
both knees, right ankle and foot issues. She reported using a cane 100% of the time since
October 2009 and the use of the cane to be self-prescribed. (Tr. 935). Dr. Morris diagnosed
Claimant with bilateral knee arthralgia with osteo-chondrule defect, medial femoral condyle left
knee, and a prior left ankle surgery with right foot pain. (Tr. 937). During the examination, Dr.
- 21 -

Morris observed how she constantly rubs her knees and periodically states how “the pain grabs
me.” (Tr. 935). Dr. Morris observed she cannot heel walk or do a tandem gait, and she uses a
cane at all times. (Tr. 936-37).
In the Medical Source Statement of Ability to Do Work-Related Activities (Physical), Dr.
Morris found that she can occasionally lift up to ten pounds and never carry ten pounds; sit for
fifteen minutes; stand and walk for ten minutes at one time without interruption; sit for two hours
in an eight-hour workday, stand for thirty minutes in an eight-hour workday, and walk for fifteen
minutes in an eight-hour workday. (Tr. 939-40). He indicated she lies in bed as the activity she
performs for remainder of the eight-hour time period. (Tr. 940). Dr. Morris found she cannot
ambulate without a cane, and the use of the cane is medically necessary. (Tr. 940). Dr. Morris
restricted her use of hands for reaching and pushing and pulling. (Tr. 941). Dr. Morris found she
could never operate foot controls with her right foot. (Tr. 941). Dr. Morris further found she can
never perform activities like shopping, and never ambulate without using a wheelchair, walker, or
two canes. (Tr. 944).
On February 11, 2010, Dr. Dianna Moses-Nunley completed a psychological evaluation
on referral by Disability Determinations. (Tr. 948). Dr. Moses-Nunley noted how she grimaced
often in pain even when not moving and observed her gait to be very slow. (Tr. 948). Although
she completed the MMPI-2, the validity of the scores were considered invalid because she is
either magnifying her problems in order to appear worse off, or she has a great deal of pathology
in her current personality functioning and emotional state. (Tr. 951). Dr. Moses-Nunley noted
how testing and background information are suggestive of use of physical problems for secondary
gain. (Tr. 952). Her diagnosis included major depressive disorder, single episode, moderate and
- 22 -

occupational and economic problems and assigned a GAF score of 58. Dr. Moses-Nunley found
her intellectual functioning is in the low average range and this might contribute to mild
impairments in tasks of daily functioning but she should not have significant disability related to
her cognitive functioning. (Tr. 952).
In the Medical Source Statement of Ability to Do Work-Related Activities (Mental), Dr.
Moses-Nunley found her to be mildly limited in her ability to interact with the public and
coworkers, and respond appropriately to usual work situations and to changes in a routine work
setting. (Tr. 957).
During treatment on July 14, 2010, Claimant reported not taking Lyrica for weeks, and
she usually walks with a cane but she was not using one on that day. (Tr. 977).
In psychotherapy treatment on February 25, 2011, Claimant reported her depression is
better overall. (Tr. 1002). On April 1, she reported improvement of her mood with the increase
in dose of Celexa. (Tr. 1000). She is dissatisfied with her social-financial situation with the need
to depend on others and her son’s mental health issues and his frequent problematic behaviors
with legal consequences. She feels her relationship has improved, and she is able to handle the
stress. She is following up regularly with her rheumatologist and finds pregablin works well for
her pain.(Tr. 1000). On July 15, she noted her son’s social situation and mental health continue to
cause her stress. (Tr.998). In follow-up on October 28, if she could get money and take care of
her finances, she would be happy. (Tr. 997). On December 23, she noted how she is dealing with
a lot of issues of her own as well as her son (fiances cheated on them). (Tr. 1015).
IV.

The ALJ's Decision
The ALJ found that Claimant meets the insured status requirements of the Social Security
- 23 -

Act through March 31, 2010. (Tr. 13). Claimant has not engaged in substantial gainful activity
since January 1, 2006, the alleged onset date of disability. (Tr. 13). The ALJ found that the
medical evidence establishes that Claimant has the severe impairments of osteoarthritis of the
knees, a history of ankle fracture, obesity, fibromyalgia syndrome, marijuana abuse, borderline
intellectual functioning, depression, and personality disorder, but no impairment or combination of
impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No.
4. (Tr. 13-16). The ALJ found Claimant has the residual functional capacity to perform light
work except she can lift and/or carry 20 pounds occasionally; she can lift and/or carry 10 pounds
frequently; she can stand and/or walk for six hours in an 8-hour day; she has no limits on sitting;
she can occasionally climb stairs and ramps; she can never climb ropes, ladders, or scaffolds; she
can balance frequently; she can stoop, kneel, crouch, or crawl occasionally; she should avoid
concentrated exposure to extreme cold, wetness, heat, sun, humidity, and hazards of heights; she
can understand, remember, and carry out at least simple instructions, non-detailed tasks; she can
demonstrate adequate judgment to make simple work-related decisions; she can adapt to routine
simple work changes; and she can perform repetitive work according to set procedures, sequence,
and pace. (Tr. 19). The ALJ found that Claimant is able to perform her past relevant work as a
cashier as well as the job such as an usher. (Tr. 26). The ALJ found that Claimant was not under
a disability from January 1, 2006 through the date of this decision. (Tr. 27).
V.

Discussion
In a disability insurance benefits case, the burden is on the claimant to prove that he or

she has a disability. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Under the
Social Security Act, a disability is defined as the “inability to engage in any substantial gainful
- 24 -

activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). Additionally, the
claimant will be found to have a disability “only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A) and
1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
The Commissioner has promulgated regulations outlining a five-step process to guide an
ALJ in determining whether an individual is disabled. First, the ALJ must determine whether the
individual is engaged in “substantial gainful activity.” If she is, then she is not eligible for
disability benefits. 20 C.F.R. § 404. 1520(b). If she is not, the ALJ must consider step two which
asks whether the individual has a “severe impairment” that “significantly limits [the claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant is
not found to have a severe impairment, she is not eligible for disability benefits. If the claimant is
found to have a severe impairment the ALJ proceeds to step three in which he must determine
whether the impairment meets or is equal to one determined by the Commissioner to be
conclusively disabling. If the impairment is specifically listed or is equal to a listed impairment,
the claimant will be found disabled. 20 C.F.R. § 404.1520(d). If the impairment is not listed or is
not the equivalent of a listed impairment, the ALJ moves on to step four which asks whether the
claimant is capable of doing past relevant work. If the claimant can still perform past work, she is
not disabled. 20 C.F.R. § 404.1520(e). If the claimant cannot perform past work, the ALJ
- 25 -

proceeds to step five in which the ALJ determines whether the claimant is capable of performing
other work in the national economy. In step five, the ALJ must consider the claimant’s “age,
education, and past work experience.” Only if a claimant is
found incapable of performing other work in the national economy will she be found disabled. 20
C.F.R. § 404.1520(f); see also Bowen, 482 U.S. at 140-41 (explaining five-step process).
Court review of an ALJ’s disability determination is narrow; the ALJ’s findings will be
affirmed if they are supported by “substantial evidence on the record as a whole.” Pearsall, 274
F.3d at 1217. Substantial evidence has been defined as “less than a preponderance, but enough
that a reasonable mind might accept it as adequate to support a decision.” Id. The court’s review
“is more than an examination of the record for the existence of substantial evidence in support of
the Commissioner’s decision, we also take into account whatever in the record fairly detracts
from that decision.” Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). The Court will
affirm the Commissioner’s decision as long as there is substantial evidence in the record to
support his findings, regardless of whether substantial evidence exists to support a different
conclusion. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001).
In reviewing the Commissioner's decision, the Court must review the entire administrative
record and consider:
1.

The credibility findings made by the ALJ.

2.

The claimant's vocational factors.

3.

The medical evidence from treating and consulting physicians.

4.

The claimant's subjective complaints relating to
exertional and non-exertional activities and impairments.

- 26 -

5.

Any corroboration by third parties of the
claimant's impairments.

6.

The testimony of vocational experts when required which
is based upon a proper hypothetical question which sets forth the claimant's
impairment.
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (quoting
Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989)).
The ALJ’s decision whether a person is disabled under the standards set forth above is
conclusive upon this Court “if it is supported by substantial evidence on the record as a whole.”
Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Finch v. Astrue, 547 F.3d 933, 935
(8th Cir. 2008). “Substantial evidence is less than a preponderance but is enough that a
reasonable mind would find it adequate to support the conclusion.” Wiese, 552 F.3d at 730
(quoting Eichelberger v. Barnhart, 390 F.3d 584, 589 (8th Cir. 2004)). When reviewing the
record to determine whether the Commissioner’s decision is supported by substantial evidence,
however, the Court must consider evidence that supports the decision and evidence that fairly
detracts from that decision. Id. The Court may not reverse that decision merely because
substantial evidence would also support an opposite conclusion, Dunahoo v. Apfel, 241 F.3d
1033, 1037 (8th Cir. 2001), or it might have “come to a different conclusion.” Wiese, 552 F.3d at
730. Thus, if “it is possible to draw two inconsistent positions from the evidence and one of those
positions represents the agency’s findings, the [Court] must affirm the agency’s decision.”
Wheeler v. Apfel, 224 F.3d 891, 894-95 (8th Cir. 2000). See also Owen v. Astrue, 551 F.3d 792,
798 (8th Cir. 2008) (the ALJ’s denial of benefits is not to be reversed “so long as the ALJ’s
decision falls within the available zone of choice”) (internal quotations omitted).

- 27 -

Claimant argues that the ALJ's decision is not supported by substantial evidence on the
record as a whole, because the ALJ failed to point to some medical evidence in formulating the
RFC. Next, Claimant contends that the hypothetical question to vocational expert did not capture
the concrete consequences of her impairments.
A.

Residual Functional Capacity and Credibility Determination
A claimant's RFC is what he can do despite his limitations. Dunahoo 241 F.3d at 1039.

The claimant has the burden to establish his RFC. Eichelberger v. Barnhart, 390 F.3d 584, 591
(8th Cir. 2004). The ALJ determines a claimant's RFC based on all relevant, credible evidence in
the record, including medical records, the observations of treating physicians and others, and the
claimant's own description of his symptoms and limitations. Goff v. Barnhart, 421 F.3d 785, 793
(8th Cir. 2005); Eichelberger, 390 F.3d at 591; 20 C.F.R. § 404.1545(a). The ALJ is "required to
consider at least some supporting evidence from a [medical professional]" and should therefore
obtain medical evidence that addresses the claimant's ability to function in the workplace. Hutsell
v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001) (internal quotation marks and citation omitted).
An ALJ's RFC assessment which is not properly informed and supported by some medical
evidence in the record cannot stand. Id.
The ALJ found that Claimant has the residual functional capacity to perform light work
except she can lift and/or carry 20 pounds occasionally; she can lift and/or carry 10 pounds
frequently; she can stand and/or walk for six hours in an 8-hour day; she has no limits on sitting;
she can occasionally climb stairs and ramps; she can never climb ropes, ladders, or scaffolds; she
can balance frequently; she can stoop, kneel, crouch, or crawl occasionally; she should avoid
concentrated exposure to extreme cold, wetness, heat, sun, humidity, and hazards of heights; she
- 28 -

can understand, remember, and carry out at least simple instructions, non-detailed tasks; she can
demonstrate adequate judgment to make simple work-related decisions; she can adapt to routine
simple work changes; and she can perform repetitive work according to set procedures, sequence,
and pace.
The undersigned will begin with a review of the ALJ’s credibility determination. See
Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005) (it is clearly established that, before
determining a claimant’s RFC, the ALJ must first evaluate the claimant’s credibility).
The Eighth Circuit has recognized that, due to the subjective nature of physical symptoms,
and the absence of any reliable technique for their measurement, it is difficult to prove, disprove
or quantify their existence and/or overall effect. Polaski, 739 F.2d 1321-22. In Polaski, the
Eighth Circuit addressed this difficulty and set forth the following standard:
The absence of an objective medical basis which supports the degree of severity of
subjective complaints alleged is just one factor to be considered in evaluating the
credibility of the testimony and complaints. The adjudicator must give full
consideration to all of the evidence presented relating to subjective complaints,
including the claimant’s prior work record, and observations by third parties and
treating and examining physicians relating to such matters as: (1) the claimant’s
daily activities; (2) the duration, frequency and intensity of the pain; (3)
precipitating and aggravating factors; (4) dosage, effectiveness and side effects of
medication; (5) functional restrictions.
Id. at 1322.
A claimant’s complaints of pain or symptoms “shall not alone be conclusive evidence of
disability ... there must be medical signs and findings, established by medically acceptable clinical
or laboratory diagnostic techniques.” Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007)
(citing 42 U.S.C. § 423(d)(5)(A). An ALJ may not disregard subjective complaints merely
because there is no evidence to support them, but may disbelieve such allegations due to “inherent
- 29 -

inconsistencies or other circumstances.” Id. (quoting Eichelberger v. Barnhart, 390 F.3d 584, 589
(8th Cir. 2004)); see also Polaski, 739 F.2d at 1322 (although the ALJ may not accept or reject
the claimant’s subjective complaints based solely upon personal observations, he may discount
such complaints if there are inconsistencies in the evidence as a whole). The “crucial question” is
not whether the claimant experiences symptoms, but whether his credible subjective complaints
prevent him from working. Gregg v. Barnhart, 354 F.3d 710, 713-14 (8th Cir. 2003). The
credibility of a claimant’s subjective testimony is primarily for the ALJ, not this Court, to decide,
and this Court considers with deference the ALJ’s decision on the subject. Tellez, 403 F.3d at
957. When an ALJ considers the Polaski factors and discredits a claimant’s subjective complaints
for a good reason, that decision should be upheld. Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir.
2001).
In his decision the ALJ thoroughly discussed the medical evidence of record, how her
impairments improved or were controlled by treatment, her noncompliance with medical
treatment, her failure to follow medical advice, possible exaggeration of symptoms, uneven work
history and poor earnings record, and her daily activities. See Gray v. Apfel, 192 F.3d 799, 80304 (8th Cir. 1999) (ALJ properly discredited claimant’s subjective complaints of pain based on
discrepancy between complaints and medical evidence, inconsistent statements, lack of pain
medications, and extensive daily activities). The lack of objective medical basis to support
Claimant’s subjective descriptions is an important factor the ALJ should consider when evaluating
those complaints. See Stephens v. Shalala, 50 F.3d 538, 541 (8th Cir. 1995) (lack of objective
findings to support pain is strong evidence of lack of a severe impairment); Barrett v. Shalala, 38
F.3d 1019, 1022 (8th Cir. 1994) (the ALJ was entitled to find that the absence of an objective
- 30 -

medical basis to support claimant’s subjective complaints was an important factor in evaluating
the credibility of her testimony and of her complaints). The ALJ noted that although Claimant
asserts that she is unable to work due to fibromyalgia, knee and hand problems, multiple screws in
her right ankle, migraine headaches, depression, stress, loss of hand function, and limited ability to
sit, stand, walk, and lift her arms overhead, the clinical and objective medical findings are
inconsistent with an individual experiencing totally debilitating symptomatology. In support, the
ALJ cited to the treatment notes of record and the improvement on medication. The ALJ then
addressed other inconsistencies in the record to support his conclusion that Claimant’s complaints
were not credible.
The ALJ properly considered the inconsistencies between Claimant’s allegations and her
daily activities. The ALJ noted that Claimant has been found to have only mild restrictions in her
activities of daily living and able to care for her son who has mental health issues and frequent
problematic behaviors with legal consequences. See Haley v. Massanari, 258 F.3d 742, 748 (8th
Cir. 2001) (“[i]nconsistencies between subjective complaints of pain and daily living patterns
diminish credibility”); Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996) (affirming ALJ’s discount
of claimant’s subjective complaints of pain where claimant was able to care for one of his children
on daily basis, drive car infrequently, and go grocery shopping occasionally).
The ALJ further noted how the various forms of treatment including prescription
medications for her alleged disabling symptoms have been generally successful in controlling those
symptoms. The ALJ considered how the medical records showed her impairments were
controlled with prescribed medication. Conditions which can be controlled by treatment are not
disabling. See Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009); Schultz v. Astrue, 479
- 31 -

F.3d 979, 983 (8th Cir. 2007) (holding that if an impairment can be controlled by treatment, it
cannot be considered disabling); Warford v. Bowen, 875 F.2d 671, 673 (8th Cir. 1989) (holding
that medical condition that can be controlled by treatment is not disabling). The medical record
establishes shows how Claimant reported Lyrca helping her symptoms and improvement on the
increased dosage of Celexa. On July 20, 2007, Claimant reported marked improvement in joint
swelling after starting a trail of prednisone.

In the May 6, 2008 progress note, Claimant reported

having pain all over her body and Neurontin helping with the pain, but she had been out of
Neurontin for two weeks. On December 12, 2008, Claimant reported doing well and prior to
running out of her medication, she was less irritable, having less depression, feeling less anxious,
and having fewer outbursts. During follow-up fibromyalgia treatment on November 3, 2009, she
reported how Lyrca helps her symptoms of pain.

In psychotherapy treatment on February 25

and April 1, 2011, Claimant reported her depression is better overall and improvement of her
mood with the increase in dose of Celexa.
In support of his credibility findings, the ALJ noted that Claimant's noncompliance with
treatment greatly detracted from her credibility. The ALJ also noted the primary aggravating
factor on the record is Claimant's failure to take medication. A lack of desire to improve one’s
ailments by failing to follow suggested medical advice detracts from a claimant’s credibility. See
Dunahoo, 241 F.3d at 1037 (claimant’s failure to follow prescribed course of treatment weighed
against credibility when assessing subjective complaints of pain); Kisling v. Chater, 105 F.3d
1255, 1257 (8th Cir. 1997) (holding impairments which are controllable or amenable to treatment
do not support a finding of disability, and failure to follow a prescribed course of remedial
treatment, including cessation of smoking, without good reason is grounds for denying an
- 32 -

application for benefits); Johnson v. Bowen, 866 F.2d 274, 275 (8th Cir. 1989) (holding that an
ALJ can discredit subjective complaints of pain based on claimant’s failure to follow a prescribed
course of treatment). On July 29 and October 11, 2007, May 6, July 29, August 28, and
December 12, 2008, and March 13 and May 15, 2009, and July 14, 2010, Claimant reported
being out of medications or not taking her medications. Likewise, on August 28, 2008 and June
26, 2009, Dr. Saleh noted how she is non complaint or partially complaint. Claimant missed
scheduled appointments on April 5 and December 28, 2009 and February 26, 2010. See
Eichelberger, 390 F.3d at 589 (holding that the ALJ properly considered that the plaintiff canceled
several physical therapy appointments and that no physician imposed any work-related restrictions
on her). The medical records show Claimant was routinely noncompliant with her medical
treatment, and when noncompliant with her medication regimen, she deteriorated and her
symptoms intensified. See Davidson v. Astrue, 578 F.3d 838, 846 (8th Cir. 2009) ("Impairments
that are controllable or amenable to treatment do not support a finding of disability."); Schultz v.
Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (noting that if impairment can be controlled by
treatment, it cannot be considered disabling). The lack of regular mental health treatment further
detracts from her credibility. The record shows that Claimant did not seek regular mental health
treatment until July 2008.
As noted by the ALJ, Claimant’s increased symptoms coincided with times of high stress.
Indeed, the treatment notes show that Claimant’s conditions improved with treatment with
situational stressors such as fiancé problems, son’s problems, and financial issues causing
increased symptoms. Likewise, on April 3, 2008, Claimant questioned whether her fatigue was
strongly related to situational stress, and Dr. Lautenschlager referred Claimant for evaluation of
- 33 -

situational stress problems. Situational depression, however, is not disabling. See Gates v.
Astrue, 627 F.3d 1080, 1082 (8th Cir. 2010) (ALJ properly found depression not disabling where
is “was situational in nature, related to marital issues, and improved with a regimen of medication
and counseling”); Dunahoo, 241 F.3d at 1039-40 (holding that 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). In July 2008, Claimant
reported frustration and irritability after losing her job three years earlier and her fiancé moving
out of state to work in Arkansas, and her daughter becoming pregnant and dropping out of
college. She was diagnosed with depression and prescribed Cymbalta, and the doctor noted she
has financial stressors. In follow-up treatment, Claimant reported being upset after being turned
down for disability again and how financial and social stressors are keeping her down. In followup treatment on January 30, 2009, she reported being sad about her grandchild’s father being
killed and on March 13, 2009, she reported finding out her fiancé has been cheating on her and
starting to become depressed, but not been taking her medications. On August 27, 2009,
Claimant reported feeling betrayed by her boyfriend who might be having a child with a woman in
Arkansas. During treatment in April and July, 2011, she reported her son’s mental health issues,
frequent problematic behaviors with legal consequences, and her social-financial situation were
constant sources of stress. On December 23, 2011, Claimant noted how she is dealing with a lot
of issues of her own as well as her son, both of their fiancés cheated on them. As such, the
undersigned finds that the ALJ properly considered that situational issues added stress to her
situation and that the ALJ’s decision in this regard is supported by substantial evidence.
Further, the ALJ evaluated other inconsistencies in the record including Claimant’s reports
- 34 -

regarding possible symptom magnification. Examining physicians also noted signs of symptom
magnification. See Baker v. Barnhart, 457 F.3d 882, 892 (8th Cir. 2006) (ALJ may draw
conclusions from claimant’s exaggeration of symptoms in evaluating subjective complaints).
During a consultative evaluation, Dr. Moses-Nunley observed how Claimant grimaced often in
pain even when not moving and observed her gait to be very slow. Although she completed the
MMPI-2, the validity of the scores were considered invalid by Dr. Moses-Nunley because she is
either magnifying her problems in order to appear worse off, or she has a great deal of pathology
in her current personality functioning and emotional state. Likewise, Dr, Moses-Nunley noted
how testing and background information are suggestive of use of physical problems for secondary
gain.

E,g,, Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir. 2006) (physicians’ statements of

symptom exaggeration, coupled with tests that were inconsistent with complaints of pain,
supported ALJ’s adverse credibility determination).
The undersigned notes contradictions between a claimant’s sworn testimony regarding the
need to use two canes and what she actually told physicians weighs against the claimant’s
credibility. Karlix v. Barnhart, 457 F.3d 742, 748 (8th Cir. 2006) (finding a lack of credibility
when claimant’s testimony regarding drinking consumption conflicted with medical
documentation). Although she testified that Dr. Ali told her to use a cane to ambulate, Dr. Ali in
the residual functional capacity questionnaire indicated that she did not need to use a cane and in
treatment notes observed Claimant was not using a cane. See Harris v. Barnhart, 356 F.3d 926,
930 (8th Cir. 2004) (whether there is a need to lie down is a medical question requiring medical
evidence; record did not contain any evidence that medical condition required claimant to lie
down for hours each day). Further, the record shows during an orthopedic evaluation by Dr.
- 35 -

Morris on February 11, 2010, she reported using a cane 100% of the time since October 2009 and
the use of the cane to be self-prescribed. Thus, if Claimant was not using a cane out of medical
necessity, she must be doing so out of choice. See Craig v. Chater, 943 F. Supp. 1184, 1188
(W.D. Mo. 1996); Cf. Harris, 356 F.3d at 930. As such, the undersigned finds that the ALJ’s
consideration of the discrepancies between Claimant’s testimony and what doctors observed
during treatment is supported by substantial evidence.
Finally, the ALJ cited Claimant's very sporadic work history of mostly low wages as
additional factors detracting from her credibility regarding the severity of her impairments alleged
and her overall motivation to work versus motivation for benefits inasmuch as her record
documents poor and overall inconsistent earnings. The ALJ noted how
[t]he claimant even had very low wages prior to her alleged disability onset date.
The claimant’s work record itself draws into question her motivation to work and
her credibility as a witness herein. While not the sole factor for consideration,
there are considerable discrepancies between the objective medical evidence and
the claimant’s allegations of an inability to do her work. The undersigned also
notes that there is also a strong element of secondary gain to the claimant’s claim
because with her history of low earnings, she may possibly receive more in
disability insurance benefits and supplemental security income than she has in the
past from any employment.
(Tr. 22). A poor work history lessens a Claimant's credibility. See Fredrickson v. Barnhart, 359
F.3d 972, 976-77 (8th Cir. 2004)(holding that claimant was properly discredited due, in part, to
her sporadic work record reflecting low earnings and multiple years with no reported earnings,
pointing to potential lack of motivation to work);Woolf v. Shalala, 3 F.3d 1210, 1214 (8th Cir.
1993); see also Ramirez v. Barnhart, 292 F.3d 576, 581-82 (8th Cir. 2002) (poor work record
and financial motivation for benefits may contribute to adverse credibility determination when
other factors cast doubt upon claimant's credibility); Pearsall v. Massanari, 274 F.3d 1211, 1218
- 36 -

(8th Cir. 2001) (a poor work history "may indicate a lack of motivation to work, rather than a
lack of ability."); Comstock v. Chater, 91 F.3d 1143, 1147 (8th Cir. 1996) (low earnings and
significant breaks in employment cast doubt on complaints of disabling symptoms). This is a
proper consideration. See Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011); accord
Wildman v. Astrue, 596 F.3d 959, 968-69 (8th Cir. 2010). The record reflects Claimant’s highest
earnings were $10,976.66 in 2001. (Tr. 331).
Moreover, the undersigned notes that no treating physician in any treatment notes stated
that Claimant was disabled or unable to work or imposed significant long-term physical and/or
mental limitations on Claimant’s capacity for work. See Young v. Apfel, 221 F.3d 1065, 1069
(8th Cir. 2000) (significant that no examining physician submitted medical conclusion that
claimant is disabled or unable to work); Edwards v. Secretary of Health & Human Servs., 809
F.2d 506, 508 (8th Cir. 1987) (examining physician’s failure to find disability a factor in
discrediting subjective complaints). The absence of objective medical basis to support Claimant’s
subjective descriptions is an important factor the ALJ should consider when evaluating those
complaints. Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012); Stephens v. Shalala, 50
F.3d 538, 541 (8th Cir. 1995)(lack of objective findings to support pain is strong evidence of lack
of a severe impairment); Barrett v. Shalala, 38 F.3d 1019, 1022 (8th Cir. 1994)(the ALJ was
entitled to find that the absence of an objective medical basis to support claimant’s subjective
complaints was an important factor in evaluating the credibility of her testimony and of her
complaints).
After engaging in a proper credibility analysis, the ALJ incorporated into Claimant's RFC
those impairments and restrictions found to be credible. See McGeorge v. Barnhart, 321 F.3d
- 37 -

766, 769 (8th Cir. 2003) (the ALJ "properly limited his RFC determination to only the
impairments and limitations he found credible based on his evaluation of the entire record."). The
ALJ determined that the medical evidence supported a finding that Claimant could perform her
past relevant work as a cashier. The vocational expert testified in response to hypothetical
questions, that incorporated the same limitations as the RFC, and opined that such individual
could also perform work as a usher.
As demonstrated above, a review of the ALJ's decision shows the ALJ not to have denied
relief solely on the lack of objective medical evidence to support his finding that Claimant is not
disabled. Instead, the ALJ considered all the evidence relating to Claimant's subjective
complaints, including the various factors as required by Polaski, and determined Claimant's
allegations not to be credible. Although the ALJ did not explicitly discuss each Polaski factor in
making his credibility determination, a reading of the decision in its entirety shows the ALJ to
have acknowledged and considered the factors before discounting Claimant's subjective
complaints. See Brown v. Chater, 87 F.3d 963, 966 (8th Cir. 1996). Inasmuch as the ALJ
expressly considered Claimant's credibility and noted numerous inconsistencies in the record as a
whole, and the ALJ's determination is supported by substantial evidence, such determination
should not be disturbed by this Court. Id.; Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996).
Because the ALJ gave multiple valid reasons for finding Claimant's subjective complaints not
entirely credible, the undersigned defers to the ALJ's credibility findings. See Guilliams v.
Barnhart, 393 F.3d 798, 801(8th Cir. 2005).
The undersigned finds that the ALJ considered Claimant's subjective complaints on the
basis of the entire record before him and set out the inconsistencies detracting from Claimant's
- 38 -

credibility. The ALJ may disbelieve subjective complaints where there are inconsistencies on the
record as a whole. Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). The ALJ pointed out
inconsistencies in the record that tended to militate against the Claimant's credibility. See
Guilliams, 393 F.3d at 801 (deference to ALJ's credibility determination is warranted if it is
supported by good reasons and substantial evidence). Those included the medical evidence of
record, how her impairments improved or were controlled by treatment, her noncompliance with
medical treatment, her failure to follow medical advice, possible exaggeration of symptoms,
uneven work history and poor earnings record, and her daily activities. The ALJ's credibility
determination is supported by substantial evidence on the record as a whole, and thus the Court is
bound by the ALJ's determination. See Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006);
Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992). Accordingly, the ALJ did not err in
discrediting Claimant's subjective complaints of pain. See Hogan v. Apfel, 239 F.3d 958, 962 (8th
Cir. 2001)(affirming the ALJ's decision that claimant's complaints of pain were not fully credible
based on findings, inter alia, that claimant's treatment was not consistent with amount of pain
described at hearing, that level of pain described by claimant varied among her medical records
with different physicians, and that time between doctor's visits was not indicative of severe pain).
Claimant’s contention that the ALJ improperly accorded little weight to the medical
source statements of Dr. Saleh. The ALJ found Dr. Saleh’s opinion appeared to be based on her
subjective reports and was not well supported by the medical evidence. The undersigned agrees.
Dr. Saleh noted how she had been treated with antidepressant medications with minimal response
and opined how she has a depressed mood with minimal response to medication. Dr. Saleh also
found Claimant would be unable to meet competitive standards of employment.
- 39 -

First, to the extent Dr. Saleh opined that Claimant is disabled and incapable of performing
any competitive employment, a treating physician’s opinion that a claimant is not able to work
“involves an issue reserved for the Commissioner and therefore is not the type of ‘medical
opinion’ to which the Commissioner gives controlling weight.” Ellis v. Barnhart, 392 F.3d 988,
994 (8th Cir. 2005); House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007) (A physician’s opinion
that a claimant is “disabled” or “unable to work” does not carry “any special significance,”
because it invades the province of the Commissioner to make the ultimate determination of
disability). The ALJ acknowledged that Dr. Saleh was a treating source, but that his opinions
were not entitled to controlling weight because they are inconsistent with the objective medical
evidence in the record. See Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007) (“If the
doctor’s opinion is inconsistent with or contrary to the medical evidence as a whole, the ALJ can
accord it less weight.”). The undersigned notes that Dr. Saleh’s opinions are also inconsistent
with his own treatment notes inasmuch as he never found such mental limitations during
treatment. Likewise, Dr. Saleh’s finding of minimal response to antidepressant medications is
refuted by the medical record. Claimant consistently reported improvement and good response to
antidepressant medications. The ALJ also noted although Dr. Saleh noted noncompliance with
medications, his medical source statement fails to address the issue of noncompliance.
Finally, Claimant appears to argue ALJ erred in discrediting all of the medical opinion
evidence in the record such that the record was devoid of any medical opinion evidence upon
which the ALJ could base his RFC assessment. Claimant’s argument is misplaced. As an initial
matter, the undersigned notes that the ALJ did not entirely discredit this opinion evidence, as
averred by Claimant, but considered such evidence and accorded the evidence some weight. A
- 40 -

review of the decision shows the ALJ afforded some weight to the opinion of Dr. Moses-Nunley
and afforded some weight to the opinion of Dr. McGee and implicitly afforded weight to the
opinions of Dr. Reid at the administrative hearing. The ALJ is “not required to rely entirely on a
particular physician’s opinion or choose between the opinions [of] any of the claimant’s
physicians” in determining a claimant’s RFC. Martise v. Astrue, 641 F.3d 909, 927 (8th Cir.
2011) (internal quotations marks and citation omitted) (alteration in Martise). Instead, the ALJ is
required to consider the entirety of the record when determining a claimant’s RFC, which is what
the ALJ did here. Cf. Holmstrom v. Massanari, 270 F.3d 715, 720-21 (8th Cir. 2001) (ALJ did
not err in discounting opinion evidence where other medical records show the effect of claimant’s
impairments).
A review of the ALJ’s decision shows the ALJ to have conducted an exhaustive review of
the medical evidence of record, including opinion evidence and observations of treating physicians
and others. The ALJ evaluated all of the opinion evidence of record and provided good reasons
for the weight accorded to each opinion. Substantial evidence on the record as whole supports
the ALJ’s determination as to the weight he accorded the opinion evidence in this cause.
In addition, upon conclusion of his discussion of specific medical records, nonmedical
evidence, and the consistency of such evidence when viewed in the light of the record as a whole,
the ALJ assessed her RFC and specifically set out Claimant’s non-exertional limitations and workrelated activity Claimant could perform based on the evidence available in the case record.
Because the medical records provide some medical evidence to support the ALJ’s RFC
determination, the determination must stand. See Steed v. Astrue, 524 F.3d 872, 876 (8th Cir.
2008). Although not all of the medical evidence “pointed in that direction,” there nevertheless
- 41 -

was a sufficient amount that did. The ALJ’s determination must therefore be upheld even if the
record could also support an opposite decision. See Moad v. Massanari, 260 F.3d 887, 891 (8th
Cir. 2001). See also Phillips v. Colvin, 721 F.3d 623, 629 (8th Cir. 2013) (it is the duty of the
Commissioner to resolve conflicts in the medical evidence).
The substantial evidence on the record as a whole supports the ALJ's decision. Where
substantial evidence supports the Commissioner's decision, the decision may not be reversed
merely because substantial evidence may support a different outcome. Woolf v. Shalala, 3 F.3d
1210, 1213 (8th Cir. 1993) (quoting Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992)).
For the foregoing reasons, the ALJ’s decision is supported by substantial evidence on the
record as a whole. Inasmuch as there is substantial evidence to support the ALJ's decision, this
Court may not reverse the decision merely because substantial evidence exists in the record that
would have supported a contrary outcome or because another court could have decided the case
differently. Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001). Accordingly, the decision of the
ALJ denying Claimant’s claims for benefits should be affirmed.
B.

Hypothetical Question
Claimant argues that the ALJ's decision is not supported by substantial evidence on the

record as a whole, because the hypothetical question to vocational expert did not capture the
concrete consequences of her impairments.
The ALJ may seek the opinion of a vocational expert regarding jobs the claimant can
perform. Pearsall, 274 F.3d at 1219. The vocational expert will be asked to respond to a
hypothetical question, posed by the ALJ, which includes all of the impairments of the claimant.
The question must “precisely set out the claimant’s particular physical and mental impairments.”
- 42 -

Leoux v. Schweiker, 732 F.2d 1385, 1388 (8th Cir. 1984). "‘A hypothetical question posed to the
vocational expert is sufficient if it sets forth impairments supported by substantial evidence in the
record and accepted as true.'" Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005) (quoting Hunt
v. Massanari, 250 F.3d 622, 625 (8th Cir. 2001)). The ALJ’s hypothetical question posed to a
vocational expert need not include alleged impairments which the ALJ has rejected as untrue or
unsubstantiated. Hunt 250 F.3d at 625; Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000);
Long v. Chater, 108 F.3d 185, 188 (8th Cir. 1997).
An error in posing the hypothetical question may be harmless, however, if there is no
conflict with the vocational expert’s testimony and the DOT or there is no indication that the ALJ
would have decided the case differently. See VanVickle v. Astrue, 539 F.3d 825, 830 (8th Cir.
2008) (ALJ harmless error where ALJ misread doctor’s handwriting regarding whether claimant
could “walk” or “work,” because no indication that the ALJ’s decision would have been different
had he read the doctor’s note correctly); Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007)
(ALJ error in failing to ask vocational expert about possible conflicts between testimony and DOT
harmless inasmuch as no conflict listed).
In addition, the undersigned notes that the ALJ based his hypothetical question on medical
evidence contained in the record as a whole. A proper hypothetical must include only those
impairments accepted as true by the ALJ. Pearsall, 274 F.3d at 1220. Furthermore, an ALJ may
omit alleged impairments from a hypothetical question posed to a vocational expert when "[t]here
is no medical evidence that these conditions impose any restrictions on [the claimant's] functional
capabilities." Haynes v. Shalala, 26 F.3d 812, 815 (8th Cir. 1994). Likewise, an ALJ may omit
alleged impairments from a hypothetical question when the record does not support the claimant's
- 43 -

contention that his impairments "significantly restricted his ability to perform gainful
employment." Eurom v. Chater, 56 F.3d 68 (8th Cir. 1995) (per curiam) (unpublished table
decision). The ALJ did not include the alleged impairment and subjective complaints that he
properly discredited. See Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001) (ALJ may
exclude alleged impairments he has properly rejected as untrue or unsubstantiated). Based on a
proper hypothetical, the vocational expert testified that Claimant was able to perform jobs such as
a cashier and an usher. The vocational expert's testimony provided substantial evidence to
support the ALJ's determination that Claimant could perform light work. Therefore, substantial
evidence supports the ALJ's determination that Claimant was not disabled. Id. As a result, the
ALJ’s hypothetical to the vocational expert was proper.
Claimant’s contention that the vocational expert’s testimony given in response to the
hypothetical questions cannot constitute substantial evidence to support the ALJ’s adverse
decision is without merit. Claimant provides no additional argument nor identifies any other issue
relating to the hypothetical questions posed to the vocational expert or the ALJ’s reliance on
testimony given in response thereto. Nor does Claimant present any argument or evidence
demonstrating that she suffered restrictions more limiting than as determined by the ALJ and
posed to the vocational expert in the hypothetical. Cf. Robson v. Astrue, 526 F.3d 389, 393 (8th
Cir. 2008 (claimant did not identify what limitations were missing from hypothetical). An ALJ is
not required to disprove every possible impairment. McCoy v. Astrue, 648 F.3d 605, 612 (8th
Cir. 2011).
For the reasons set out above, the ALJ did not err in his consideration of the relevant
medical evidence and other evidence in this cause, including opinion evidence, in determining
- 44 -

Claimant’s RFC. Because the ALJ’s RFC assessment was supported by substantial evidence, the
hypothetical question based on the RFC was proper. Accordingly, the vocational expert’s
testimony given in response to this hypothetical question constituted substantial evidence to
support the ALJ’s decision. Renstrom, 680 F.3d at 1067-68; Martise, 641 F.3d at 927.
For the foregoing reasons, the ALJ's decision is supported by substantial evidence on the
record as a whole. Inasmuch as there is substantial evidence to support the ALJ's decision, this
Court may not reverse the decision merely because substantial evidence exists in the record that
would have supported a contrary outcome or because another court could have decided the case
differently. Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001). Accordingly, the decision of the
ALJ denying Claimant's claims for benefits should be affirmed.
IT IS HEREBY ORDERED that the decision of the Commissioner be AFFIRMED. A
separate Judgment in accordance with this Memorandum and Order is entered this same date.

/s / Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE
Dated this

6th day of February, 2015.

- 45 -