Dotson, Jr. v. Colvin

Filing 25

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that the relief sought by Plaintiff in his Complaint and Brief in Support of Complaint (Docs. 1, 19) is DENIED; IT IS ORDERED that a separate judgment be entered incorporating this Memorandum and Order. Signed by Magistrate Judge Noelle C. Collins on 4/29/2015. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RICKY A. DOTSON, JR.,

)
)
Plaintiff,
)
)
V.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 4:14CV685NCC

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner denying the application of Ricky A. Dotson,
Jr., (Plaintiff) for Disability Insurance Benefits (DIB) under Title II of the Social
Security Act (the Act), 42 U.S.C. §§ 401 et seq., and for Supplemental Security
Income (SSI), under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et
seq. Plaintiff has filed a brief in support of the Complaint. (Doc. 19). Defendant
has filed a brief in support of the Answer. (Doc. 24). The parties have consented
to the jurisdiction of the undersigned United States Magistrate Judge pursuant to
Title 28 U.S.C. § 636(c). (Doc. 9).

I.
PROCEDURAL HISTORY
On June 1, 2012, Plaintiff filed his application for DIB, and, on June 13,
2012, he filed his application for SSI. (Tr. 168-83). Plaintiff alleged a disability
onset date of May 21, 2012. Plaintiff’s applications were denied, and he requested
a hearing before an Administrative Law Judge (ALJ). (Tr. 23-25, 98-117, 126-27).
After a hearing, by decision, dated March 29, 2013, the ALJ found Plaintiff not
disabled. (Tr. 10-18). On March 4, 2014, the Appeals Council denied Plaintiff’s
request for review. (Tr. 1-4). As such, the ALJ’s decision stands as the final
decision of the Commissioner.
II.
LEGAL STANDARDS
Under the Social Security Act, the Commissioner has established a five-step
process for determining whether a person is disabled. 20 C.F.R. §§ 416.920,
404.1529. “‘If a claimant fails to meet the criteria at any step in the evaluation of
disability, the process ends and the claimant is determined to be not disabled.’”
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v.
Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for
disability benefits. 20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant
must have a severe impairment. 20 C.F.R. §§ 416.920(c), 404.1520(c). The Social

2

Security Act defines “severe impairment” as “any impairment or combination of
impairments which significantly limits [claimant’s] physical or mental ability to do
basic work activities.” Id. “The sequential evaluation process may be terminated
at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.” Page
v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari,
250 F.3d 603, 605 (8th Cir. 2001) (citing Nguyen v. Chater, 75 F.3d 429, 430-31
(8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment
which meets or equals one of the impairments listed in the Regulations. 20 C.F.R.
§§ 416.920(d), 404.1520(d); pt. 404, subpt. P, app. 1. If the claimant has one of, or
the medical equivalent of, these impairments, then the claimant is per se disabled
without consideration of the claimant’s age, education, or work history. See id.
Fourth, the impairment must prevent the claimant from doing past relevant
work. 20 C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at
this fourth step to establish his or her Residual Functional Capacity (RFC). See
Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step four of this
analysis, the claimant has the burden of showing that she is disabled.”);
Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363 F.3d 731, 737 (8th
Cir. 2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). The ALJ

3

will review a claimant’s RFC and the physical and mental demands of the work the
claimant has done in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other
work. 20 C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential
analysis, the Commissioner has the burden of production to show evidence of other
jobs in the national economy that can be performed by a person with the claimant’s
RFC. See Steed, 524 F.3d at 874 n.3; Young, 221 F.3d at 1069 n.5. If the
claimant meets these standards, the ALJ will find the claimant to be disabled.
“The ultimate burden of persuasion to prove disability, however, remains with the
claimant.” Id. See also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004)
(citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to
demonstrate RFC remains on the claimant, even when the burden of production
shifts to the Commissioner at step five.”); Charles v. Barnhart, 375 F.3d 777, 782
n.5 (8th Cir. 2004) (“[T]he burden of production shifts to the Commissioner at step
five to submit evidence of other work in the national economy that [the claimant]
could perform, given her RFC.”).

Even if a court finds that there is a

preponderance of the evidence against the ALJ’s decision, the decision must be
affirmed if it is supported by substantial evidence. See Clark v. Heckler, 733 F.2d
65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but is

4

enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th
Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). In Bland v.
Bowen, 861 F.2d 533, 535 (8th Cir. 1988), the Eighth Circuit Court of Appeals
held:
The concept of substantial evidence is something less than the weight
of the evidence and it allows for the possibility of drawing two
inconsistent conclusions, thus it embodies a zone of choice within
which the Secretary may decide to grant or deny benefits without
being subject to reversal on appeal.
See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (“[W]e may not
reverse merely because substantial evidence exists for the opposite decision.”)
(quoting Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)); Hartfield v.
Barnhart, 384 F.3d 986, 988 (8th Cir. 2004) (“[R]eview of the Commissioner’s
final decision is deferential.”).
It is not the job of the district court to re-weigh the evidence or review the
factual record de novo. See Cox, 495 F.3d at 617; Guilliams v. Barnhart, 393 F.3d
798, 801 (8th Cir. 2005); McClees v. Shalala, 2 F.3d 301, 302 (8th Cir. 1993);
Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir. 1992). Instead, the district court
must simply determine whether the quantity and quality of evidence is enough so
that a reasonable mind might find it adequate to support the ALJ’s conclusion. See
Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228

5

F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ,
who is the fact-finder. See Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987).
See also Onstead v. Sullivan, 962 F.2d 803, 804 (8th Cir. 1992) (holding that an
ALJ’s decision is conclusive upon a reviewing court if it is supported by
“substantial evidence”). Thus, an administrative decision which is supported by
substantial evidence is not subject to reversal merely because substantial evidence
may also support an opposite conclusion or because the reviewing court would
have decided differently.

See Krogmeier, 294 F.3d at 1022.

See also

Eichelberger, 390 F.3d at 589; Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000)
(quoting Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir. 1998)); Hutsell v. Massanari,
259 F.3d 707, 711 (8th Cir. 2001).
To determine whether the Commissioner’s final decision is supported by
substantial evidence, the court is required to review the administrative record as a
whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s
physical activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;

6

(6) The testimony of vocational experts based upon proper hypothetical
questions which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir.
1980); Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).
Additionally, an ALJ’s decision must comply “with the relevant legal
requirements.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
The Social Security Act defines disability as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). “While the claimant has the burden of
proving that the disability results from a medically determinable physical or mental
impairment, direct medical evidence of the cause and effect relationship between
the impairment and the degree of claimant’s subjective complaints need not be
produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When
evaluating evidence of pain, the ALJ must consider:
(1) the claimant’s daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
claimant’s pain;
(3) any precipitating or aggravating factors;

7

(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant’s functional restrictions.
Baker v. Sec’y of Health & Human Servs., 955 F.2d. 552, 555 (8th Cir. 1992);
Polaski, 739 F.2d at 1322.
The absence of objective medical evidence is just one factor to be
considered in evaluating the plaintiff’s credibility. See id. The ALJ must also
consider the plaintiff’s prior work record, observations by third parties and treating
and examining doctors, as well as the plaintiff’s appearance and demeanor at the
hearing. See Polaski, 739 F.2d at 1322; Cruse, 867 F.2d at 1186.
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him to reject the plaintiff’s complaints.
See Guilliams, 393 F.3d at 801; Masterson, 363 F.3d at 738; Lewis v. Barnhart,
353 F.3d 642, 647 (8th Cir. 2003); Hall v. Chater, 62 F.3d 220, 223 (8th Cir.
1995). It is not enough that the record contains inconsistencies; the ALJ must
specifically demonstrate that he considered all of the evidence.

Robinson v.

Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Butler v. Sec’y of Health & Human
Servs., 850 F.2d 425, 429 (8th Cir. 1988). The ALJ, however, “need not explicitly
discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). See also Steed, 524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972
(8th Cir. 2000)). The ALJ need only acknowledge and consider those factors. See

8

id. Although credibility determinations are primarily for the ALJ and not the court,
the ALJ’s credibility assessment must be based on substantial evidence. See
Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v. Heckler, 780
F.2d 1371, 1374 (8th Cir. 1985).
RFC is defined as what the claimant can do despite his or her limitations, 20
C.F.R. § 404.1545(a)(1), and includes an assessment of physical abilities and
mental impairments. 20 C.F.R. § 404.1545(b)-(e). The Commissioner must show
that a claimant who cannot perform his or her past relevant work can perform other
work which exists in the national economy. See Karlix v. Barnhart, 457 F.3d 742,
746 (8th Cir. 2006); Nevland, 204 F.3d at 857 (citing McCoy v. Schweiker, 683
F.2d 1138, 1146-47 (8th Cir. 1982) (en banc)). The Commissioner must first prove
that the claimant retains the RFC to perform other kinds of work. See Goff, 421
F.3d at 790; Nevland, 204 F.3d at 857. The Commissioner has to prove this by
substantial evidence. Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983).
Second, once the plaintiff’s capabilities are established, the Commissioner has the
burden of demonstrating that there are jobs available in the national economy that
can realistically be performed by someone with the plaintiff’s qualifications and
capabilities. See Goff, 421 F.3d at 790; Nevland, 204 F.3d at 857.
To satisfy the Commissioner’s burden, the testimony of a vocational expert
(VE) may be used. An ALJ posing a hypothetical to a VE is not required to

9

include all of a plaintiff’s limitations, but only those which he finds credible. See
Goff, 421 F.3d at 794 (“[T]he ALJ properly included only those limitations
supported by the record as a whole in the hypothetical.”); Rautio, 862 F.2d at 180.
Use of the Medical-Vocational Guidelines is appropriate if the ALJ discredits the
plaintiff’s subjective complaints of pain for legally sufficient reasons. See Baker
v. Barnhart, 457 F.3d 882, 894-95 (8th Cir. 2006); Carlock v. Sullivan, 902 F.2d
1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir. 1989).
III.
DISCUSSION
The issue before the court is whether substantial evidence supports the
Commissioner’s final determination that Plaintiff was not disabled. See Onstead,
962 F.2d at 804. Thus, even if there is substantial evidence that would support a
decision opposite to that of the Commissioner, the court must affirm her decision
as long as there is substantial evidence in favor of the Commissioner’s position.
See Cox, 495 F.3d at 617; Krogmeier, 294 F.3d at 1022.
Plaintiff, who was forty-years old at the time of the hearing, testified that he
was six feet tall and weighed 310 pounds; when he worked and did not have
problems; he weighed 280 pounds; he could read at the fourth grade level and
write “not so well”; he received a certificate indicating that he completed an auto
body class; and he stopped working, on May 21, 2012, because he could not

10

breathe, his legged was “swelled up,” and he could not go to work. (Tr. 35, 39,
42).
The ALJ found that Plaintiff met the insured requirements through
December 31, 2014; he had not engaged in substantial gainful activity since May
21, 2012; Plaintiff had the severe impairment of obesity; and Plaintiff did not have
an impairment or combination of impairments that met or medically equaled a
listed impairment. The ALJ further found that Plaintiff had the RFC to perform
light work except that he could tolerate no more than moderate exposure to cold
and hot temperatures and respiratory irritants. Finally, the ALJ found that Plaintiff
could not perform any past relevant work; that there was work in the national
economy, existing in significant numbers, which a person of Plaintiff’s age and
with his work experience, education, and RFC could perform; and that, therefore,
Plaintiff was not disabled.
Plaintiff contends the ALJ’s decision is not supported by substantial
evidence because the ALJ gave improper weight to the opinion of Joseph Gaeta,
M.D., a medical expert who testified at the hearing, because the ALJ failed to
consider Plaintiff’s obesity, and because the hypothetical, which the ALJ posed to
the VE, did not reflect Plaintiff’s RFC. (Doc. 19). For the following reasons, the
court finds that the ALJ’s determination that Plaintiff was not disabled is based on
substantial evidence.

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A.

Plaintiff’s Credibility:
The court will first consider the ALJ=s credibility determination, as the ALJ=s

evaluation of Plaintiff=s credibility was essential to the ALJ=s determination of
other issues, including Plaintiff’s RFC. See Wildman v. Astrue, 596 F.3d 959, 969
(8th Cir. 2010) (A[The plaintiff] fails to recognize that the ALJ's determination
regarding her RFC was influenced by his determination that her allegations were
not credible.@) (citing Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005)); 20
C.F.R. §§ 404.1545, 416.945 (2010). As set forth more fully above, the ALJ=s
credibility findings should be affirmed if they are supported by substantial
evidence on the record as a whole; a court cannot substitute its judgment for that of
the ALJ. See Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Hutsell,
892 F.2d at 750; Benskin, 830 F.2d at 882.
To the extent that the ALJ did not specifically cite Polaski, other case law,
and/or Regulations relevant to a consideration of Plaintiff=s credibility, this is not
necessarily a basis to set aside an ALJ=s decision where the decision is supported
by substantial evidence. Randolph v. Barnhart, 386 F.3d 835, 842 (8th Cir. 2004);
Wheeler v. Apfel, 224 F.3d 891, 895 n.3 (8th Cir. 2000); Reynolds v. Chater, 82
F.3d 254, 258 (8th Cir. 1996); Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir.
1995). Additionally, an ALJ need not methodically discuss each Polaski factor if
the factors are acknowledged and examined prior to making a credibility
12

determination; where adequately explained and supported, credibility findings are
for the ALJ to make. See Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). See
also Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (AThe ALJ is not
required to discuss each Polaski factor as long as the analytical framework is
recognized and considered.@); Strongson, 361 F.3d at 1072; Brown v. Chater, 87
F.3d 963, 966 (8th Cir. 1996).
In any case, A[t]he credibility of a claimant=s subjective testimony is
primarily for the ALJ to decide, not the courts.@ Pearsall v. Massanari, 274 F.3d
1211, 1218 (8th Cir. 2001).

AIf an ALJ explicitly discredits the claimant=s

testimony and gives good reason for doing so, [a court] will normally defer to the
ALJ=s credibility determination.@ Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir.
2003). See also Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010); Cox v.
Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). For the following reasons, the court
finds that the reasons offered by the ALJ in support of his credibility determination
are based on substantial evidence.
First, the ALJ considered that Plaintiff’s subjective allegations were
inconsistent with the objective medical evidence. (Tr. 14-17). The objective
medical evidence, or lack thereof, is an important factor to consider in determining
credibility. See 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) (objective medical
evidence is a useful indicator in making reasonable conclusions about the intensity
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and persistence of a claimant’s symptoms and the effect those symptoms may have
on a claimant’s ability to work); Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir.
2006) (ALJ may find claimant’s subjective pain complaints are not credible in light
of objective medical evidence to the contrary).

In particular, the ALJ

acknowledged that Plaintiff experienced some limitations from his physical
problems, including his obesity, heart condition, breathing problems, and leg
swelling, but ultimately determined that the medical evidence did not corroborate
the severity of Plaintiff’s alleged symptoms. (Tr. 12-17).
Indeed, the objective medical evidence reflects that Plaintiff had a history of
heart problems, including congestive heart failure and cardiomyopathy. (Tr. 31920, 355). In particular, regarding Plaintiff’s heart problems, records reflect that a
May 21, 2012 view of Plaintiff’s chest showed “[c]hanges of mild to moderate
congestive heart failure,” a “moderate degree of cardiac enlargement,” and the
“possibility of superimposed basilar infiltrates.” (Tr. 358). On May 22, 2012,
John B. Baird, M.D., reported that Plaintiff had “[m]oderate left ventricular
enlargement,” severe global LV systolic “dysfunction, mild to moderate atrial
enlargement, mild right ventricular dilation with severe systolic dysfunction, mild
right atrial dilation, and mild “mitral regurgitation,” and that Plaintiff’s
“[m]easured biplane” left ventricular ejection fraction was 27%.

(Tr. 354).

Indeed, a May 22, 2012 echocardiogram (EKG) indicated that Plaintiff had a left

14

ventricular ejection fraction of 27%, and a May 25, 2012 right and left
catheterization and coronary angiography demonstrated an estimated ejection
fraction

of

less

than

20%.

(Tr.

319).

See

http://www.mayoclinic.com/health/ejection-fraction/AN00360 (last visited Dec.
17, 2013) (“The left ventricle is the heart's main pumping chamber, so ejection
fraction is usually measured only in the left ventricle (LV). An LV ejection
fraction of 55 percent or higher is considered normal. An LV ejection fraction of
50 percent or lower is considered reduced. Experts vary in their opinion about an
ejection fraction between 50 and 55 percent, and some would consider this a
‘borderline’ range.”).
On June 7, 2012, Dr. Baird noted that Plaintiff’s ejection fraction was “2529%” when he was in the hospital; Plaintiff had a “cardiac cath” while in the
hospital “with minimal irregularities [and] no significant disease”; and, “[d]ue to
job requirements, work[ing] in very hot environment, [Plaintiff] [was] applying for
SS disability.” Dr. Baird reported that examination of Plaintiff’s cardiac system
showed “S1 normal, S2 normal, no murmurs, no gallops,” and that Plaintiff’s
neurological system showed no gross motor or sensory deficits. (Tr. 355-57).
On June 14, 2012, it was reported that Plaintiff had improved and was doing
well.

(Tr. 359).

On June 22, 2012, Dr. Baird reported that Plaintiff was

“stabilized; he had no reoccurrence of “A-fib” (atrial fibrillation) which he had

15

while in the hospital; and he had regular rhythm, “no reoccurrence,” and “no
significant disease.” (Tr. 357). On July 27, 2012, when Plaintiff was seen by Dr.
Baird for follow up of his atrial fibrillation, cardiomyopathy idiopathic, congestive
heart failure, hypertension, and obesity, Dr. Baird reported that Plaintiff’s EKG
showed normal sinus rhythm. On examination, Plaintiff had no lower extremity
edema, no spinal abnormalities, and no gross motor or sensory deficits. (Tr. 36567).
An August 20, 2012 EKG report noted normal left ventricular size and
systolic function without regional wall motion abnormalities, a “LVEF [of] 57%,”
normal size aortic root, and mildly dilated ascending aorta. Review of Plaintiff’s
cardiac system was normal, with no murmurs or gallops. (Tr. 368-69) (emphasis
added). Dr. Baird reported, on November 26, 2012, that Plaintiff’s last EKG
showed “sinus tachycardia, rate 122 bpm,” normal intervals, “normal ST
segments” and “T-waves,” and “[a]bnormal R-wave in the precordial leads.” It
was noted, on this date, that Plaintiff’s cardiomyopathy had “great[ly]” improved
in “LV systolic function [], amazingly, with his last [EKG] showing the ejection
fraction in the 50%.” (Tr. 370) (emphasis added). Also, on this date, Plaintiff was
noted to have “little shortness of breath,” no chest pain or discomforts, some
dyspnea on exertion, and no murmurs or gallops. On examination, Plaintiff’s
cardiac system showed “S1 normal, S2 normal, no murmurs, no gallops,” and his

16

neurological system showed no gross motor or sensory deficits. (Tr. 370). An
EKG performed, on November 26, 2012, showed normal left ventricle size and
systolic function, without regional wall motion abnormalities, a “LVEF [of] 53%”;
all chambers were normal in size and systolic function; and there was mild
diastolic function, and a “minimally enlarged aortic root. (Tr. 373) (emphasis
added). On February 13, 2013, Plaintiff’s diagnosis was congestive heart failure,
peripheral edema, and weight gain (Tr. 378), and, on February 20, 2013, he was
diagnosed with congestive heart failure and cardiomyopathy (Tr. 379).
Significantly, Joseph Gaeta, M.D., a board certified cardiologist, testified at the
hearing that Plaintiff’s ejection fraction, since August 2012, was normal and did
not support Plaintiff’s claim of a disabling heart condition. (Tr. 76-78).
The ALJ also considered Plaintiff’s alleged leg problems, including that
medical records showed that Plaintiff experienced some swelling in his legs. The
ALJ noted, however, that the medical records also reflected that Plaintiff’s
swelling was only moderate and that it improved with treatment. (Tr. 15). The
ALJ also noted that Plaintiff’s medical records showed minimal swelling in his
lower extremities, no gross or motor sensory deficits, no tenderness, and the ability
to move all extremities “well.” (Tr. 15). In particular, on examination, in June
2012, Plaintiff had “no lower extremity edema” and no “gross motor or sensory
deficits.” (Tr. 357). In July 2012, Plaintiff reported that “fluid [was] staying off

17

nicely” and he had no complaints of pedal edema.

(Tr. 365, 367).

On

examination, in July 2012, it was noted that Plaintiff had no lower extremity
edema, and no gross motor or sensory deficits. (Tr. 365, 367). In November 2012,
Plaintiff reported having “some occasional lower extremity edema.” (Tr. 370,
372). On examination in November 2012, Plaintiff had no lower extremity edema
and no gross motor or sensory deficits. (Tr. 370, 372). On February 13, 2013,
when Plaintiff presented due to swelling in his legs, it was noted that Plaintiff had
leg swelling since May 2012; that it “got better but returned”; and that his current
swelling was “moderate.” (Tr. 378).
The ALJ further considered that Plaintiff received treatment for shortness of
breath. (Tr. 15). The court notes that, in June 2012, Plaintiff denied dyspnea, and
his chest was clear to auscultation. (Tr. 355-57). On examination in November
2012, dyspnea on exertion was noted. (Tr. 370-71). The court finds, therefore,
that the ALJ’s determination that Plaintiff’s subjective allegations were
inconsistent with the objective medical evidence is based on substantial evidence.
Second, the ALJ considered Plaintiff’s daily activities.

While the

undersigned appreciates that a claimant need not be bedridden before he can be
determined to be disabled, Plaintiff's daily activities can nonetheless be seen as
inconsistent with his subjective complaints of a disabling impairment and may be
considered in judging the credibility of his complaints. See Eichelberger, 390 F.3d

18

at 590 (ALJ properly considered that plaintiff watched television, read, drove, and
attended church upon concluding that subjective complaints of pain were not
credible); Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001); Onstead, 962
F.2d at 805; Murphy v. Sullivan, 953 F.2d 383, 386 (8th Cir. 1992); Benskin, 830
F.2d at 883; Bolton v. Bowen, 814 F.2d 536, 538 (8th Cir. 1987). Indeed, the
Eighth Circuit holds that allegations of disabling Apain may be discredited by
evidence of daily activities inconsistent with such allegations.@ Davis v. Apfel,
239 F.3d 962, 967 (8th Cir. 2001).

AInconsistencies between [a claimant=s]

subjective complaints and [his] activities diminish [his] credibility.@ Goff, 421
F.3d at 792. See also Haley v. Massanari, 258 F.3d 742, 748 (8th Cir. 2001);
Nguyen v. Chater, 75 F.3d 429, 439-41 (8th Cir. 1996) (holding that a claimant=s
daily activities, including visiting neighbors, cooking, doing laundry, and attending
church, were incompatible with disabling pain and affirming denial of benefits at
the second step of analysis).
In particular, the ALJ considered that Plaintiff testified, at the hearing, that
he cooked, washed laundry and dishes, and went fishing. The ALJ also considered
that Plaintiff stated, in a Function Report – Adult, that he went grocery shopping;
that he was able to pay bills, count change, handle a savings account, and use a
checkbook; that he visited with friends who came to his house; that he did not have
problems getting along with family, friends, and neighbors; that he got along “ok”
19

with authority figures, such as bosses; and that he was able to follow spoken
instructions “pretty well.” (Tr. 16, 263-70). As such, the court finds that the ALJ
properly considered Plaintiff’s daily activities and that the ALJ’s decision, in this
regard, is based on substantial evidence.
Third, the court notes that Plaintiff improved with medication. In particular,
when he was hospitalized, in May 2012, for congestive heart failure, it was
reported that Plaintiff “dirures[ed] well with [a] 28-pound weight loss with IV
Lasix.” (Tr. 319). Further, Dr. Baird noted that Plaintiff’s ejection fraction had
reached 57% by August 2012. (Tr. 368). Conditions which can be controlled by
treatment are not disabling. See Renstrom v. Astrue, 680 F.3d 1057, 1066 (8th Cir.
2012) (quoting Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010)); Davidson v.
Astrue, 578 F.3d 838, 846 (8th Cir. 2009); Medhaug v. Astrue, 578 F.3d 805, 813
(8th Cir. 2009); Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (holding that
if an impairment can be controlled by treatment, it cannot be considered disabling).
Fourth, the court notes that there were inconsistencies between Plaintiff’s
allegations of disabling pain and what he actually told health care providers.
Eichelberger, 290 F.3d at 589 (A[A]n ALJ may disbelieve a claimant=s subjective
reports of pain because of inconsistencies or other circumstances.@). In this regard,
in July 2012, Plaintiff reported that “fluid [was] staying off nicely” and he had no
complaints of pedal edema. Plaintiff also reported feeling better and that he was

20

“less short of breath.” (Tr. 365, 367). In July 2012, Plaintiff told Dr. Baird that he
was feeling better and that he had no complaints of “any significant chest pain.”
(Tr. 365-67). In August 2012, Plaintiff reported that he was “actually feeling
pretty well overall.” (Tr. 370). In November 2012, Plaintiff reported having
“some occasional lower extremity edema,” and “a little shortness of breath at
times,” and that he was “actually feeling pretty well overall.” (Tr. 370-72). In
conclusion, the court finds that the ALJ’s credibility determination, in its entirety,
is based on substantial evidence.
B.

Dr. Gaeta’s Testimony and Opinion:
Dr. Gaeta testified, at the March 13, 2013 hearing, that he is a board-

certified cardiologist; he never treated Plaintiff; and he reviewed exhibits which the
Commissioner sent him, which exhibits included Plaintiff’s records from May 21,
2012, through November 22, 2012. The ALJ then proceeded to read to Dr. Gaeta
from a February 27, 2013 Physician’s Assessment for Social Security Disability
Claim (the Assessment), prepared by Dr. Baird, in which Dr. Baird opined, among
other things, that Plaintiff was incapable of even low-stress work; that Plaintiff
could not work or stay functioning greater than 20% of the day; that he could not
“lift 10 pounds more than rarely”; that he had to avoid all exposure to extreme
cold, heat, humidity, wetness, stairs, cigarette smoke, solvents, cleaners, fumes,

21

odors, gases, dust and chemicals; and that he would miss work more than three
times a month.
The court notes that Dr. Baird additionally stated, in the Assessment, that he
had treated Plaintiff every four months for “cardiology”; that Plaintiff’s prognosis
was “severe”; that his clinical findings included shortness of breath, “palpatations,”
chest pain, and “ECHOEF 25%”; that Plaintiff’s symptoms included chest pain,
shortness of breath, weakness, palpitations, “angina equivalent pain,” fatigue, and
dizziness; that Plaintiff had “marked limitations of physical activity”; that stress
played a significant role in Plaintiff’s symptoms; that Plaintiff was incapable of
even “low stress” jobs; that Plaintiff experienced cardiac symptoms severe enough
to interfere with the attention and concentration needed to perform even simple
work tasks; that Plaintiff’s impairments could be expected to last at least twelve
months; that he could walk one block without resting; that he could sit or
stand/walk less than 2 hours in an 8-hour work day; that Plaintiff would need to
take unscheduled breaks every hour in an 8-hour work day; that these breaks would
have to last 10 minutes; that, with prolonged sitting, Plaintiff’s legs would have to
be elevated; that Plaintiff would have to elevate his legs four times a day; that
Plaintiff could rarely lift and carry ten pounds and never more than ten pounds;
that he could rarely twist, stoop, or crouch and never climb ladders or stairs; that he
should avoid exposure to extreme cold and heat, high humidity, wetness, cigarette

22

smoke, solvents, fumes, dusts, and chemicals; that he would have to be absent from
work more than three times a month; that Plaintiff’s limitations were due his
medical condition; and that, as of the date Dr. Baird completed the Assessment,
February 27, 2013, Plaintiff had the symptoms and limitations Dr. Baird described
in the Assessment. (Tr. 375-77).
The ALJ also read from a Southwest Medical Associates treatment note,
which reflected that Plaintiff was treated on February 13, 2013; that his chief
complaint, on that date, was leg swelling; that Plaintiff’s weight was 320 pounds;
that his blood pressure was 134/80 1; that the assessment was congestive heart
failure, peripheral edema, and weight gain; and that the plan was to increase Lasix.
(Tr. 72-74, 375-79).
Dr. Gaeta then testified that Plaintiff should avoid extremes of temperatures,
dust, or fumes; that Plaintiff could have some exposure to these things; that
Plaintiff’s early ejection fraction of 25% met the Listing; that, as stated above,
Plaintiff improved “significantly” after May 2012, according to his EKG and the
record; that Plaintiff’s more recent EKG was normal; that it was likely that the

http://www.mayoclinic.or/diseases-conditions/high-blood-presure/in-depth/bloodpresure/ART-20050982 (last accessed 02/27/2014) (systolic (top number) below
120 and diastolic (bottom number) below 80 is normal blood pressure; 120-139
over 80-89 is prehypertension; 140-159 over 90-99 is stage 1 hypertension; 160 or
more over 100 or more is stage 2 hypertension; adopting a healthy lifestyle is
recommended for prehypertension).
1

23

swelling in Plaintiff’s legs was related to Plaintiff’s weight rather than to heart
failure because peripheral edema is “usually a late manifestation of heart failure”;
that, when there is a late manifestation and he sees peripheral edema, Dr. Gaeta
recommends that patients “elevate their legs”; that patients with late manifestation
heart failure usually respond well to diuretics, like Plaintiff was taking; that “due to
mechanical factors, like weight, diuretics do not work very well”; and that when
diuretics do not work well, Dr. Gaeta recommends elevation, but most of all a
patient would need weight loss.
Dr. Gaeta also testified that Plaintiff had, in fact, been diagnosed with
congestive heart failure and cardiomyopathy, but that Plaintiff’s medical records
showed that his heart condition had improved significantly and was not as severe
as alleged, based on EKG results. Specifically, Dr. Gaeta testified that Plaintiff’s
November 2012 ejection fraction of 53% was normal. Dr. Gaeta concluded that
Plaintiff could perform light exertional work but should avoid more than moderate
exposure to cold and hot temperatures and respiratory irritants. (Tr. 72-88).
The ALJ held that he afforded great weight to Dr. Gaeta’s opinion that
Plaintiff could perform light work with environmental restrictions of not more than
moderate exposure to cold and hot temperatures and respiratory irritants. (Tr. 15).
Plaintiff argues that the ALJ gave improper weight to Dr. Gaeta’s opinion; that the
ALJ should not have relied upon Dr. Gaeta’s opinion because Dr. Gaeta did not

24

have two exhibits for review when he testified; that the ALJ failed to incorporate
Dr. Gaeta’s opinion that Plaintiff would have to elevate his legs throughout the
day; and that the ALJ should have incorporated Dr. Gaeta’s opinion that Plaintiff
had congestive heart failure and cardiomyopathy in making his step two finding
regarding Plaintiff’s severe impairments. (Doc. 19 at 11).
First, the court notes that, pursuant to the Regulations and case law, even
though Dr. Gaeta was a non-treating physician, the ALJ properly considered Dr.
Gaeta’s opinion. See 20 C.F.R. §§ 404.1527(e)(2)(iii), 416.927(e)(2)(iii); Hacker
v. Barnhart, 459 F.3d 934, 939 (8th Cir. 2006)(“[t]he regulations specifically
provide that the opinions of non-treating physicians may be considered.”).
Second, consistent with the Regulations and case law, the ALJ determined
that Dr. Gaeta’s opinion was entitled to great weight because he is a specialist in
the relevant field of cardiology.

(Tr. 15).

20 C.F.R. §§ 404.1527(d)(5),

416.927(d)(5); Brown v. Astrue, 611 F.3d 941, 953 (8th Cir. 2010); Kelley v.
Callahan, 133 F.3d 583, 589 (8th Cir. 1998) (AThe Commissioner is encouraged to
give more weight to the opinion of a specialist about medical issues related to his
or her area of specialty than the opinion of a source who is not a specialist.@).
Third, the ALJ stated that he afforded Dr. Gaeta’s opinion great weight
because it was consistent with and supported by the evidence. (Tr. 15). Notably,
as discussed above in regard to Plaintiff’s credibility, after treatment, Plaintiff

25

improved and had normal ejection fractions, and it was reported that he had little
shortness of breath, was feeling better and had no gross motor or sensory deficits.
(Tr. 355-57, 359, 370). Indeed, a physician’s opinion is afforded controlling
weight where it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other substantial evidence” of
record. Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir. 2009)
Fourth, to the extent Plaintiff contends that Dr. Gaeta’s opinion was flawed
because it did not include a review of the entirety of Dr. Baird’s opinion, the ALJ
did not blindly adopt Dr. Gaeta’s opinion. Rather, upon determining Plaintiff’s
RFC the ALJ considered all the evidence of record, including Dr. Baird’s opinion
as expressed the February 2013 Assessment.

Upon doing so, the ALJ was

fulfilling his role to consider all the evidence of record and then determine the
weight to be given the various medical opinions of record. See Prosch v. Apfel,
201 F.3d 1010, 1013 (8th Cir. 2000). See also Travis v. Astrue, 477 F.3d 1037,
1041 (8th Cir. 2007) (AIf the doctor=s opinion is inconsistent with or contrary to the
medical evidence as a whole, the ALJ can accord it less weight.@). While Dr. Baird
was a treating physician, his opinion did not automatically control or obviate the
need to evaluate the record as a whole. See Leckenby v. Astrue, 487 F.3d 626, 632
(8th Cir. 2007); Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001).

26

Fifth, Plaintiff misconstrues Dr. Gaeta’s testimony upon suggesting that Dr.
Gaeta opined that Plaintiff needed to elevate his legs most of the day. Rather, as
discussed above, Dr. Gaeta was responding to a hypothetical question when he
testified that, if a patient had lower extremity swelling as a late manifestation of
heart failure, he would recommend the patient elevate his legs. Dr. Gaeta opined,
however, that, to the extent Plaintiff had peripheral edema, it was likely due to his
weight. (Tr. 86). Moreover, Dr. Gaeta further opined that Plaintiff’s records did
not indicate that edema was “a significant problem.” Only if he had a lot of
swelling, would Plaintiff have to elevate his legs at work. Even if he had such
swelling, which he did not have, Dr. Gaeta opined that there were other things
Plaintiff could do, such as use stockings. (Tr. 88). Thus, Dr. Gaeta did not opine
that Plaintiff needed to elevate his legs; and, taken in context of Dr. Gaeta’s
testimony, he did not opine that Plaintiff would have to elevate his feet throughout
the workday. As such, there is no merit to Plaintiff’s argument that the ALJ failed
to account for Dr. Gaeta’s testimony that Plaintiff would have to elevate his legs.
Sixth, although Plaintiff argues the ALJ should have found that Plaintiff’s
heart condition was severe based on Dr. Gaeta’s testimony, Dr. Gaeta’s testimony
that Plaintiff had heart problems does not establish disability; Plaintiff was
required to prove the severity of his diagnosed conditions.

AThe severity

Regulation adopts a standard for determining the threshold level of severity: the

27

impairment must be one that >significantly limits your physical or mental ability to
do basic work activities.=@ Bowen v. Yuckert, 482 U.S. 137, 153 n.11 (1987)
(quoting 20 CFR § 404.1520(c)).

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 without regard to age, education, or
work experience. See 20 C.F.R. §§ 404.1520(c), 404.1521(a). However, “[a]n
impairment is not severe if it amounts only to a slight abnormality that would not
significantly limit the claimant’s physical or mental ability to do basic work
activities.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007); see also 20 C.F.R.
§ 404.1521(a) (describing basic work activities). In other words, if the impairment
has only a minimal effect on the claimant’s ability to work, then it is not severe.
See Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007). A plaintiff has the
burden of establishing a severe impairment. See Kirby, 500 F.3d at 707. The ALJ,
in the instant matter, considered that Plaintiff had a heart condition, but concluded
based on the evidence of record, that it did not significantly limit his physical
ability to do basic work activities. (Tr. 14-16). Most significantly, as discussed
above, Plaintiff’s heart condition improved, as evidenced by his posthospitalization examinations and normal ejection fractions. Thus, the court finds
that Plaintiff’s argument that the ALJ should have found his heart condition severe
is without merit. In conclusion, the court finds that the ALJ gave proper weight to

28

Dr. Gaeta’s opinion, and that the ALJ’s decision, in that regard, is based on
substantial evidence and consistent with the Regulations and case law.
C.

Dr. Baird’s Opinion:
The ALJ stated that he afforded Dr. Baird’s opinion little weight because his

records and opinion were relevant to Plaintiff’s condition from May 2012 through
August 20, 2012, but not from that latter date to the date of the hearing, as in the
Assessment, Dr. Baird cited evidence created prior to August 20, 2012. The ALJ
also stated that Dr. Baird’s opinion was afforded little weight because his opinion
was contradicted by the record as a whole. (Tr. 16). Plaintiff’s Brief is not clear as
to whether he intended to take issue with the weight the ALJ gave to Dr. Baird’s
opinion, but, nonetheless, the court has considered whether the ALJ gave proper
weight to Dr. Baird’s opinion and finds that the ALJ’s decision to give Dr. Baird’s
opinion little weight is based on substantial evidence.
First, to the extent Dr. Baird indicated Plaintiff was unable to work, such a
decision is properly made by the ALJ. See Ward v. Heckler, 786 F.2d 844, 846
(8th Cir. 1986) (per curiam) ("Even statements made by a claimant's treating
physician regarding the existence of a disability have been held to be properly
discounted in favor of the contrary medical opinion of a consulting physician
where the treating physician's statements were conclusory in nature.@); Thomas v.
Sullivan, 928 F.2d 255, 259 (8th Cir. 1991)); King v. Heckler, 742 F.2d 968, 973

29

(6th Cir. 1984) (holding that the ALJ is not bound by conclusory statements of
total disability by a treating physician where the ALJ has identified good reason for
not accepting the treating physician's opinion, such as its not being supported by
any detailed, clinical, or diagnostic evidence).
Second, to the extent Dr. Baird indicated Plaintiff was unable to work by
making checkmarks on the Assessment form, a treating physician=s checkmarks on
a form are conclusory opinions which can be discounted if contradicted by other
objective medical evidence. See Stormo v. Barnhart, 377 F.3d 801, 805-06 (8th
Cir. 2004); Hogan, 239 F.3d at 961; Social Security Regulation (SSR) 96-2p, 1996
WL 374188 (July 2, 1996).
Third, as stated by the ALJ, Dr. Baird’s conclusions, as expressed in the
Assessment, are inconsistent with the objective medical evidence, including tests
which demonstrated Plaintiff had a normal ejection fraction, after treatment. See
Renstrom v. Astrue, 680 F.3d 1057, 1064-65 (8th Cir. 2012) (affirming where ALJ
did not give controlling weight to opinion of treating doctor, where doctor’s
opinion was “largely based on [claimant’s] subjective complaints” and where
treating doctor’s opinion was not consistent with other medical experts who
determined claimant could perform light work with a modified RFC).
Fourth, Dr. Baird’s opinion was inconsistent with his own records, in
particular, Dr. Baird’s reporting, on June 14, 2014, that Plaintiff had improved and

30

was doing well, his reporting, on June 22, 2013, that Plaintiff had no significant
disease, and his reporting in August 2012, that Plaintiff made “amazing”
improvement when his ejection fraction was up to 56%, and his frequently
reporting that examination of Plaintiff’s “cardiac” showed “S1 normal, S2 normal,
no murmurs, no gallops” and that neurological examination showed no gross motor
or sensory deficits. (Tr. 357, 359, 367, 372). See Davidson v. Astrue, 578 F.3d
838, 842 (8th Cir. 2009) (AIt is permissible for an ALJ to discount an opinion of a
treating physician that is inconsistent with the physician's clinical treatment
notes.@). In conclusion, the court finds that the ALJ gave proper weight to Dr.
Baird’s opinion and that the ALJ’s decision, in this regard, is based on substantial
evidence and consistent with the Regulations and case law.
D.

Plaintiff’s Obesity:
As stated above, the ALJ found that Plaintiff’s only severe impairment was

obesity.

Plaintiff argues that the ALJ failed to fully consider the impact of

Plaintiff’s obesity on his ability to work, as required by SSR 02-01p, 2000 WL
628049 (Sept. 12, 2002).

Specifically, Plaintiff argues the ALJ should have

included restrictions, in his RFC determination, in regard to Plaintiff’s exposure to
heat and other non-exertional limitations and included restrictions addressing
Plaintiff’s inability to stand for long periods of time. (Doc. 19 at 12-13).
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.00(Q), states:

31

Effects of obesity. Obesity is a medically determinable impairment
that is often associated with disturbance of the musculoskeletal
system, and disturbance of this system can be a major cause of
disability in individuals with obesity. The combined effects of obesity
with musculoskeletal impairments can be greater than the effects of
each of the impairments considered separately. Therefore, when
determining whether an individual with obesity has a listing-level
impairment or combination of impairments, and when assessing a
claim at other steps of the sequential evaluation process, including
when assessing an individual's residual functional capacity,
adjudicators must consider any additional and cumulative effects of
obesity.
SSR 02-01p, 2000 WL 628049, at *2-5, states, in relevant part, that:
Obesity is a complex, chronic disease characterized by
excessive accumulation of body fat.
Obesity is generally a
combination of factors (e.g., genetic, environmental, and behavioral).
....
We will consider obesity in determining whether:
The individual has a medically determinable impairment.
....
The individual=s impairment(s) is severe. . . .
The individual=s impairment(s) meets or equals the
requirements of a listed impairment in the listings. . . .
The individual=s impairment(s) prevents him or her from
doing past relevant work. . . .
If an individual has the medically determinable impairment
obesity that is Asevere@ as described [above], we may find that the
obesity medically equals a listing. . . . We may find in a title II claim,
or an adult claim under title XVI, that the obesity results in a finding
that the individual is disabled based on his or residual functional
capacity (RFC), age, education, and past work experience. However,
we will also consider the possibility of coexisting or related
conditions, especially as the level of obesity increases. . . . There is
no specific weight or BAI that equates with a Asevere@ or a Anot
severe@ impairment. . . . Rather, we will do an individualized
assessment of the impact of obesity on an individual=s functioning
when deciding whether the impairment is severe. . . .
32

Because there is no listing for obesity, we will find that an
individual with obesity may meet the requirements of a listing if he or
she has another impairment that, by itself, Ameets@ the requirements of
a listing. We will also find that a listing is met if there is an
impairment that, in combination with obesity, meets the requirements
of a listing. For example, obesity may increase the severity of
coexisting or related impairments to the extent that the combination of
impairments meets the requirements of a listing.
Also, 20 C.F.R. Pt. 404, Subpart P, Appx. 1, § 1.00(Q), provides that:
Obesity is a medically determinable impairment that is often
associated with disturbance of the musculoskeletal system, and
disturbance of this system can be a major cause of disability in
individuals with obesity. The combined effects of obesity with
musculoskeletal impairments can be greater than the effects of each of
the impairments considered separately. Therefore, when determining
whether an individual with obesity has a listing-level impairment or
combination of impairments, and when assessing a claim at other
steps of the sequential evaluation process, including when assessing
an individual's residual functional capacity, adjudicators must
consider any additional and cumulative effects of obesity.
As a preliminary matter, the court notes that Plaintiff did not list obesity as
an impairment affecting his ability to work on his application for benefits or in his
disability repot, nor did he address it at the administrative hearing. (Tr. 26-92,
216). The Eighth Circuit holds that it is significant that a claimant has failed to
allege disability due to a particular condition. See Wall v. Astrue, 561 F.3d 1048,
1062 (8th Cir. 2009) (holding that because the claimant did not allege that she
suffered from a severe mental impairment, the AALJ=s failure to discuss listing
12.05C [was], therefore unsurprising@); Dunahoo, 241 F.3d at 1039 (holding that

33

the fact that the claimant did not allege depression on his benefits application was
significant even though evidence of depression was later developed).
Upon concluding that Plaintiff was not disabled, the ALJ did not dispute
Plaintiff=s allegation that he was obese, as he found that Plaintiff’s obesity was
severe. The ALJ considered all Plaintiff=s symptoms and medical records in light
of his obesity, and concluded that the combination of his impairments did not meet
the requirements of a listing. Further, when determining Plaintiff=s RFC, the ALJ
considered Plaintiff=s obesity, in conjunction with other limitations which he found
credible. He accounted for Plaintiff’s obesity by limiting him to light work, which
requires “standing or walking, off and on, for a total of approximately 6 hours of
an 8-hour workday.@

SSR 83-10, 1983 WL 31251, at *6 (Dec. 12, 1983)

(emphasis added). The ALJ also limited Plaintiff to moderate exposure to cold and
hot temperatures and respiratory irritants. Thus, despite Plaintiff’s assertion to the
contrary, the ALJ did account for Plaintiff’s inability to stand for long periods and
his inability to have more than a moderate exposure to heat.
To the extent the ALJ did not include any additional limitations in Plaintiff’s
RFC, the ALJ was not required to include limitations beyond those he found
credible. Cf. Tindell v. Barnhart, 444 F.3d 1002, 1007 (8th Cir. 2006) (AThe ALJ
included all of Tindell=s credible limitations in his RFC assessment, and the ALJ=s
conclusions are supported by substantial evidence in the record.@); SSR 96-8p,
34

1996 WL 374184, at *2 (July 2, 1996) (AIt is incorrect to find that an individual has
limitations or restrictions beyond those caused by his or her medical impairment(s)
including any related symptoms, such as pain due to factors such as age or height,
or whether the individual had ever engaged in certain activities in his or her past
relevant work (e.g., lifting heavy weights.).@).
The court finds, therefore, that the ALJ=s consideration of Plaintiff=s obesity
is consistent with the Regulations and case law, and that it is based on substantial
evidence.
E.

Hypothetical to VE:
The Regulations define RFC as Awhat [the claimant] can do@ despite his or

her Aphysical or mental limitations.@ 20 C.F.R. § 404.1545(a). AWhen determining
whether a claimant can engage in substantial employment, an ALJ must consider
the combination of the claimant=s mental and physical impairments.@ Lauer v.
Apfel, 245 F.3d 700, 703 (8th Cir. 2001). AThe ALJ must assess a claimant=s RFC
based on all relevant, credible evidence in the record, >including the medical
records, observations of treating physicians and others, and an individual=s own
description of his limitations.=@ Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir.
2004) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). See also
Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013).

35

Upon making an RFC assessment, an ALJ must first identify a claimant=s
functional limitations or restrictions, and then assess his or her work-related
abilities on a function-by-function basis. See Masterson, 363 F.3d at 737; Harris v.
Barnhart, 356 F.3d 926, 929 (8th Cir. 2004). The RFC need only include a
plaintiff=s credible limitations. See Tindell v. Barnhart, 444 F.3d 1002, 1007 (8th
Cir. 2006) (AThe ALJ included all of Tindell=s credible limitations in his RFC
assessment, and the ALJ=s conclusions are supported by substantial evidence in the
record.@).
In accordance with the above cited Regulations and case law, the ALJ, in the
instant matter, considered the credibility of Plaintiff’s allegations and all the
evidence of record, including the medical evidence and Plaintiff’s testimony. See
Tucker, 363 F.3d at 783. Only after doing so did the ALJ determine Plaintiff had
the RFC to perform light work except that he could not have more than moderate
exposure to cold and hot temperatures and respiratory irritants. The court finds,
therefore, that the ALJ’s RFC determination is based on substantial evidence and
consistent with the Regulations and case law.
The ALJ posed several hypotheticals to the VE, one of which mirrored the
RFC which the ALJ assigned to Plaintiff, and which described a person of
Plaintiff’s age, education, and work experience. As part of this hypothetical, the
ALJ stated that the hypothetical person would have to elevate his legs only during
36

break times. (Tr. 90). The VE testified that there were jobs existing in significant
numbers in the national economy which the hypothetical person could perform.
(Tr. 90). An alternative hypothetical, which the ALJ posed to the VE, described a
person who would have to elevate his legs three to four times a day. The VE
testified that there were no jobs which such a person could perform. (Tr. 89-90).
In his decision, the ALJ noted that the VE testified that, if Plaintiff had to
elevate his feet outside of the normal break times, he could not sustain any work.
As stated above, however, the ALJ found that the evidence did not establish such a
need was medically reasonable for Plaintiff. (Tr. 15-16). As such, the ALJ found
that Plaintiff had the RFC to perform light work, with the environmental
limitations discussed above.

The court has found that the ALJ’s RFC

determination is based on substantial evidence and consistent with the case law and
Regulations.
Nonetheless, Plaintiff argues that the ALJ’s determination that there are jobs
which Plaintiff can perform is not based on substantial evidence because the ALJ’s
RFC determination does not mirror the hypothetical submitted to the VE.
First, the ALJ was only required to include in the hypothetical which he
posed to the VE those limitations which he found credible; the ALJ did not find
Plaintiff had to elevate his legs, either during the work day or during breaks. Thus,
the ALJ was not required to include such limitations in a hypothetical to the VE or

37

rely on the VE’s response to such a hypothetical. See Renstrom v. Astrue, 680
F.3d 1057, 1067 (8th Cir. 2012); Martise v. Astrue, 641 F.3d 909, 927(8th Cir.
2011) (AThe ALJ's hypothetical question to the vocational expert needs to include
only those impairments that the ALJ finds are substantially supported by the record
as a whole.@); Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (“[T]he ALJ
was not obligated to include limitations from opinions he properly disregarded.”);
Guilliams v. Barnhart, 393 F.3d 789, 804 (8th Cir. 2005) (holding that a proper
hypothetical sets forth impairments supported by substantial evidence and accepted
as true by the ALJ).
Second, because the VE testified that there were jobs existing in significant
numbers for a person with Plaintiff’s RFC, even if that person had to elevate his
legs during breaks, it stands to reason that there would be jobs existing in
significant numbers for the hypothetical person who did not have to lift his legs
during breaks.
Third, the ALJ did not rely exclusively on the VE’s testimony. Rather, the
ALJ independently found that the environmental limitations he included in
Plaintiff’s RFC had “little or no effect on the occupational base of unskilled light
work.”

(Tr. 17).

Because Plaintiff could perform “substantially all of the

exertional demands of work” at the light level, the ALJ reasoned that MedicalVocational Guidelines (the Guidelines) could be used as a framework for

38

determining whether there was work which Plaintiff could perform. (Tr. 17).
Indeed, if a claimant is found to have only exertional impairments, the
Commissioner may meet her burden by referring to the Medical-Vocational
Guidelines.

See Robinson v. Sullivan, 956 F.2d 836, 839 (8th Cir. 1992).

Significantly, A>an ALJ may use the Guidelines even though there is a
nonexertional impairment if the ALJ finds, and the record supports the finding, that
the nonexertional impairment does not diminish the claimant=s residual functional
capacity to perform the full range of activities listed in the Guidelines.=@ Lucy v.
Chater, 113 F.3d 905, 908 (8th Cir. 1997) (quoting Thompson v. Bowen, 850 F.2d
346, 349-50 (8th Cir. 1988)). See also Reynolds v. Chater, 82 F.3d 254, 258-59
(8th Cir. 1996) (when nonexertional limitations do not significantly affect a
claimant’s ability to work, an ALJ is not required to consult a VE and can properly
rely on the Medical-Vocational Guidelines).
Fourth, 20 C.F.R. Part 404, Subpart P, App. 2, § 202(b) provides that the
“functional capacity to perform the full range of light work represents substantial
work capability compatible with making a work adjustment to substantial numbers
of unskilled jobs, and thus, generally provides sufficient occupational mobility
even for severely impaired individuals who are not of advanced age and have
sufficient educational competences for unskilled work.”

According to the

Regulations, Plaintiff, who was 40 years old at the time of the ALJ’s decision, was

39

a “younger individual.”

20 C.F.R. Part 404, Subpart P, App. 2, § 201(h)(1)

(“[Y]ounger individual is used to denote an individual age 18 through 49”). Thus,
given that the ALJ found that Plaintiff’s environmental limitations did not
significantly erode the occupational base, the ALJ’s decision is based on
substantial evidence.
Fifth, to the extent the ALJ’s decision may not have clearly articulated the
basis for his determination that there was work which Plaintiff could perform, a
deficiency in the ALJ’s opinion writing is not a sufficient reason for setting aside
the Commissioner’s “finding where the deficiency had no practical effect on the
outcome of the case.” Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999).
AConsequently, the [alleged] deficiency does not require reversal since it had no
bearing on the outcome@ of Plaintiff’s case. Id.
In conclusion, given that the court has found above that the ALJ’s RFC
determination is based on substantial evidence, the court further finds the ALJ’s
determination that there is work in the national economy which Plaintiff can
perform is based on substantial evidence and consistent with the Regulations and
case law.

Additionally, the court finds without merit Plaintiff’s arguments

regarding the hypothetical posed to the VE and that the ALJ’s decision, in this
regard, is consistent with the Regulations and case law.

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IV.
CONCLUSION
For the reasons set forth above, the court finds that substantial evidence on
the record as a whole supports Commissioner’s decision that Plaintiff is not
disabled.
Accordingly,
IT IS HEREBY ORDERED that the relief sought by Plaintiff in his
Complaint and Brief in Support of Complaint (Docs. 1, 19) is DENIED;
IT IS ORDERED that a separate judgment be entered incorporating this
Memorandum and Order.
Dated this 29th day of April 2015.
/s/ Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE

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