Hamer v. Colvin

Filing 32

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED. A separate Judgment shall accompany this Memorandum and Order.. Signed by Magistrate Judge John M. Bodenhausen on 11/5/15. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SHERRIE HAMER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 4:14 CV 1371 JMB

MEMORANDUM AND ORDER
This action is before the Court, pursuant to the Social Security Act (“the Act”), 42 U.S.C.
§§ 401, et seq., authorizing judicial review of the final decision of the Commissioner of Social
Security (the “Commissioner”) denying Plaintiff Sherrie Hamer’s application for Supplemental
Security Income (“SSI”). All matters are pending before the undersigned United States
Magistrate Judge with consent of the parties, pursuant to 28 U.S.C. § 636(c). The matter is fully
briefed, and for the reasons discussed below, the Commissioner’s decision is affirmed.
I.

Procedural History & Summary of Case
In December 2008, Plaintiff filed an application for SSI benefits, alleging disability

beginning in October 2002. On September 10, 2010, an Administrative Law Judge (“ALJ”)
denied the application. (Tr. 62-71) 1 On November 5, 2010, Plaintiff filed another application
for SSI benefits. That claim was denied at the initial level, and by a different ALJ at the hearing
level. (Tr. 12-22) The ALJ concluded that Plaintiff could not return to her past relevant work.
(Tr. 20) Based on hypothetical questions posed to a vocational expert (“VE”), the ALJ found

1

References to “Tr.” are to the administrative record filed by the Commissioner in this matter.

that Plaintiff was not under a disability within the meaning of the Act because she could perform
other representative occupations that existed in substantial numbers in the national economy,
such as surveillance system monitor and call out operator. (Tr. 21)
The Social Security Administration Appeals Council denied Plaintiff’s request for
review, leaving the ALJ’s decision as the final decision of the Commissioner in this matter.
Plaintiff filed the instant action on August 6, 2014. Accordingly, Plaintiff has exhausted her
administrative remedies and the matter is properly before this Court. Plaintiff has been
represented by counsel throughout all relevant proceedings. Unless otherwise noted, all
references to the ALJ or hearing refer to Plaintiff’s November 2010 application for SSI benefits.
In her brief to this Court, Plaintiff raises four issues. First, Plaintiff argues that the ALJ’s
Residual Functional Capacity (“RFC”) assessment lacked a substantial evidentiary basis in the
record due to an error in addressing the medical evidence. [ECF No. 20 at 3-4] Second, Plaintiff
contends that the ALJ failed to provide sufficient, specific reasons for an adverse determination
of Plaintiff’s credibility. [Id. at 4-5] Third, Plaintiff argues that the VE’s testimony regarding
the available jobs for Plaintiff was flawed. [Id. at 5-7] Fourth, Plaintiff contends that the overall
decision of the ALJ was contrary to the weight of the evidence in the record. [Id. at 7-8] The
Commissioner filed a detailed brief in opposition. [ECF No. 30] 2
As explained below, the Court has considered the entire record in this matter, including
the supplemental records presented to the Appeals Council. Because the decision of the
Commissioner is supported by substantial evidence and contains no legal error, it will be
affirmed.
2

Plaintiff also filed a motion to compel the Commissioner to supplement the record, identifying
records Plaintiff’s counsel submitted to the Appeals Council after the ALJ’s decision denying her
SSI application. [ECF No. 19] The Commissioner did not oppose the motion to supplement and
has, in fact, submitted the supplemental records requested. [ECF Nos. 21, 22]

2

II.

The ALJ’s Decision
In a decision dated December 12, 2012, the ALJ determined that Plaintiff was not

disabled under the Social Security Act. (Tr. 12-22) Consistent with testimony from a VE, the
ALJ found that Plaintiff retained the RFC to perform the requirements of representative
occupations such as surveillance system monitor and call out operator. (Tr. 21) In arriving at
her decision, the ALJ followed the required five-step inquiry.
At step one, the ALJ concluded that Plaintiff had not engaged in any substantial gainful
activity since her application date. (Tr. 14) At step two, the ALJ found Plaintiff had the
following severe impairments: (1) diabetes with neuropathy; (2) obesity; and (3) depression.
(Id.) Regarding an alleged shoulder impingement issue, hypertension, and disc disease, the ALJ
found those impairments to be non-severe. (Id.) At step three, the ALJ concluded that none of
Plaintiff’s impairments, whether considered singly or in combination, meets one of the listed
impairments of 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 15-16)
At step four, the ALJ reviewed the entire record and concluded that Plaintiff retained the
RFC to perform “sedentary work,” with the following additional restriction – she “is limited to
performing simple, repetitive tasks.” (Tr. 16) In arriving at this RFC determination, the ALJ
found that Plaintiff’s “medically determinable impairments could reasonably be expected to
cause the alleged symptoms,” but Plaintiff’s “statements concerning the intensity, persistence
and limiting effects of [those] symptoms are not credible to the extent they are inconsistent with
[the ALJ’s RFC] assessment.” (Tr. 19) The ALJ noted, for example, that Plaintiff’s daily
activities were “not limited to the extent one would expect, given [Plaintiff’s] complaints of
disabling symptoms and limitations.” (Id.) Likewise, the ALJ found that Plaintiff received
routine and conservative treatment, which was inconsistent with someone who claims to be

3

totally disabled. (Id.) Similarly, the ALJ observed that Plaintiff’s treatment was “generally
effective when she is compliant.” (Tr. at 19-20) Moreover, despite Plaintiff’s complaints of
“disabling symptoms,” there were instances where Plaintiff was not compliant with her diet or
medication regimen. (Tr. 20) The ALJ also noted that none of Plaintiff’s treating or examining
physicians provided any opinion that Plaintiff was disabled or suffered limitations greater than
those found by the ALJ. (Id.) Nor did any of Plaintiff’s treating doctors place any restrictions on
Plaintiff. To the contrary, the ALJ noted that Plaintiff’s primary care doctor actually directed her
to walk daily. (Id.)
In determining Plaintiff’s RFC, the ALJ also gave great weight to the opinions of two
consulting sources – Drs. Raymond Leung and Paul Rexroat. Dr. Leung completed a physical
examination and Dr. Rexroat completed a psychiatric examination. (Tr. 20) Dr. Leung
examined Plaintiff after the administrative hearing in this matter, while Dr. Rexroat examined
her prior to the hearing. (Tr. 341, 361) The ALJ considered, but gave little weight to, the
opinions of Plaintiff’s friends and relatives. (Id.)
Also at step four, with the assistance of a VE’s testimony, the ALJ concluded that the
demands of Plaintiff’s past relevant work exceeded her current RFC. At step five, also based on
the VE’s testimony, the ALJ found that there are jobs existing in the national economy that
Plaintiff can still perform, including surveillance system monitor and call out operator. (Tr. 21)
Accordingly, the ALJ held that, “considering [Plaintiff’s] age, education, work experience, and
[RFC], [Plaintiff] is capable of making a successful adjustment to other work that exists in
significant numbers in the national economy. A finding of ‘not disabled’ is therefore appropriate
….” (Tr. 22)

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III.

Administrative Record
The administrative record in this matter includes a substantial volume of medical and

other records. The Court has considered the entire record. The following is a summary of
pertinent portions of the record.
A.

The Hearing Before the ALJ

The ALJ conducted a hearing on September 18, 2012. Plaintiff was present and
represented by an attorney. (Tr. 27-57) Also present was a vocational expert (“VE”), Delores
Gonzalez. Both Plaintiff and the VE testified under oath. At the outset of the hearing, Plaintiff’s
attorney provided a short opening statement. Counsel stated that Plaintiff had “confirmed
uncontrolled diabetes, … significant problems with the use of her right shoulder, … and
neuropathy.” (Tr. 31) Counsel also noted that a prior ALJ had limited Plaintiff to “no more than
sedentary work.” (Id.) Counsel further represented that Plaintiff cannot use her upper dominant
extremity on a frequent basis. (Id.) Finally, counsel represented that Plaintiff’s impairments did
not meet any listing. (Id.)
1.

Plaintiff’s Testimony

Plaintiff testified that she was 44 years old, did not graduate high school, had not passed a
GED exam, and lacked any vocational training. (Tr. 32-34) Plaintiff stated that she stopped
looking for work due to diabetes, depression, and pain in her legs and feet. (Tr. 35) Plaintiff
stated that she is able to drive short distances, but complained of pain in her feet and shoulders.
(Tr. 33)
Plaintiff described her prior work experience, which included working as a pad printer, as
a home health aide, at a Dollar General store, and inserting parts on computer circuit boards.
(Tr. 35-38) Plaintiff last worked in 2007 during which time she briefly worked for a temp

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agency. Plaintiff testified that she cannot work now because of her diabetes, swelling in her legs
and feet, right shoulder pain, depression, anxiety, and bipolar disorder. (Tr. 39) Plaintiff
described the medications she takes for her various conditions. (Tr. 39-40) She advised that,
despite her medications, her blood sugar level remained uncontrolled. (Tr. 40)
Regarding her right shoulder condition, Plaintiff explained that she is right-handed and
that her condition came on suddenly, after she heard a “loud pop.” (Tr. 41) Plaintiff described
her pain as if “the bones [were] literally grinding,” resulting in shooting pain down her arm. (Tr.
45) Plaintiff testified that she has been diagnosed with a frozen shoulder, but she could not
afford the therapy necessary to correct her problem. (Id.)
Plaintiff testified that she had problems standing and walking, and that she uses a cane
periodically. (Tr. 41) She was not prescribed a cane by a doctor. (Tr. 41-42) Plaintiff testified
she could walk between 25 and 40 feet with her cane, and can sit for about 30 minutes at a time.
(Tr. 42) She testified that the most she could lift was a “can of soup,” but that she also can lift a
gallon of milk, “but it hurts.” (Tr. 43) Plaintiff explained that she experienced numbness in her
fingers as well. (Tr. 43-44) Plaintiff also stated that she regularly experienced blurry vision.
(Tr. 46) Plaintiff also described a long-term psychological disorder which compels her to pull
hair from her lower legs, particularly when she is upset or experiencing anxiety. (Tr. 47-48) At
the time of her testimony, Plaintiff had seen a psychiatric specialist only one time. (Tr. 48)
For a typical day, Plaintiff would fold laundry, take her dogs in the backyard and sit on
the steps. She would also watch television and read. Plaintiff’s teenage daughter would assist
her with various tasks. (Tr. 43-44)
2.

Vocational Expert’s Testimony

The vocational expert (“VE”), Delores Gonzalez, was present throughout Plaintiff’s

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testimony. The VE first reviewed and characterized Plaintiff’s past work. (Tr. 51-52). The VE
specifically considered the requirements of fingering, handling, and reaching for Plaintiff’s past
work. (Id.)
The ALJ asked the VE a hypothetical question based on a claimant of the same age,
education, and work experience as Plaintiff. The VE further limited the hypothetical claimant to
sedentary work with a further limitation that the person could only perform simple, repetitive
tasks and would be limited to occasional fingering and handling with both upper extremities.
(Tr. 52) The VE opined that such a claimant would not be able to return to Plaintiff’s past work.
(Id.) The VE further opined, however, that such a claimant would be able to perform other
work that exists in substantial numbers in the regional and national economy. In particular, the
VE identified two representative jobs – surveillance system monitor (DOT # 379.367-010), and
call out operator (DOT # 237.367-014). (Tr. 53) According to the VE, both representative jobs
are sedentary and unskilled. The surveillance job requires no handling, fingering, reaching or
feeling. The call out operator job requires only occasional reaching, handling or fingering. (Id.)
The ALJ then asked the VE to consider a hypothetical claimant with the previously
identified limitations, as well as a restriction such that the person would only have occasional
interaction with supervisors, co-workers, and the public. (Id.) According to the VE, the
additional restriction would eliminate the call out operator job, but not the surveillance system
monitor job. (Id.) The ALJ then asked the VE to add another limitation such that the
hypothetical claimant was off task, unpredictably, for fifteen minutes at a time. According to the
VE, such a limitation would eliminate all work. (Tr. 54)
The VE testified that her answers were consistent with the “Dictionary of Occupational
Titles.”

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Plaintiff’s attorney questioned the VE as to whether the surveillance system monitoring
position was classified as a skilled or unskilled position. (Tr. 54-55) The VE held fast to her
position that the position was unskilled. (Tr. 55)
B.

Medical Records and Source Opinion Evidence

The ALJ summarized the medical evidence in the record at the time of the decision. (Tr.
17-20) The Appeals Council considered additional medical records Plaintiff submitted after the
ALJ’s decision. These records included a mental RFC questionnaire, completed by Dr. John
Crain, M.D., as well as additional records from Dr. Crain. (Tr. 388-401) Because Dr. Crain’s
records involved information regarding a later time, the Appeals Council concluded that those
records did not affect the ALJ’s decision. (Tr. 2) The Appeals Council advised that, if Plaintiff
desired the Commissioner to consider whether she was disabled at this later time, she would need
to file a new application. (Id.)
The remainder of the relevant medical record and medical source opinion evidence will
be discussed in more detail below, as part of the Court’s analysis of the arguments raised by
Plaintiff herein.
IV.

Standard of Review and Analytical Framework
“To be eligible for SSI benefits, [Plaintiff] must prove that she is disabled ….” Baker v.

Sec’y of Health and Human Servs., 955 F.2d 552, 555 (8th Cir. 1992); see also Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Under the Act, a disability is defined 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 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). A claimant will be found to have a disability “only if his

8

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).
Per regulations promulgated by the Commissioner, the ALJ follows a five-step process in
determining whether a claimant is disabled. “During this process the ALJ must determine: ‘1)
whether the claimant is currently employed; 2) whether the claimant is severely impaired; 3)
whether the impairment is, or is comparable to, a listed impairment; 4) whether the claimant can
perform past relevant work; and if not 5) whether the claimant can perform any other kind of
work.’” Andrews v. Colvin, 791 F.3d 923, 928 (8th Cir. 2015) (quoting Hacker v. Barnhart, 459
F.3d 934, 936 (8th Cir. 2006)). “If, at any point in the five-step process the claimant fails to
meet the criteria, the claimant is determined not to be disabled and the process ends.” Id. (citing
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005)). See also Martise v. Astrue, 641 F.3d 909,
921 (8th Cir. 2011).
The Eighth Circuit has repeatedly emphasized that a district court’s review of an ALJ’s
disability determination is intended to be narrow and that courts should “defer heavily to the
findings and conclusions of the Social Security Administration.” Hurd v. Astrue, 621 F.3d 734,
738 (8th Cir. 2010) (quoting Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001)). The
ALJ’s findings should be affirmed if they are supported by “substantial evidence” on the record
as a whole. See Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). Substantial evidence is “less
than a preponderance, but enough that a reasonable mind might accept it as adequate to support a
decision.” Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008); see also Wildman v. Astrue,
964 F.3d 959, 965 (8th Cir. 2010) (same).

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Despite this deferential stance, a district court’s review must be “more than an
examination of the record for the existence of substantial evidence in support of the
Commissioner’s decision.” Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). The district
court must “also take into account whatever in the record fairly detracts from that decision.” Id.
Specifically, in reviewing the Commissioner’s decision, a district court is required to examine
the entire administrative record and consider:
1.
2.
3.
4.
5.
6.

The credibility findings made by the ALJ.
The claimant’s vocational factors.
The medical evidence from treating and consulting physicians.
The claimant’s subjective complaints relating to exertional and nonexertional activities and impairments.
Any corroboration by third parties of the claimant’s impairments.
The testimony of vocational experts, when required, which is based upon a
proper hypothetical question which sets forth the claimant’s impairment.

See Stewart v. Sec’y of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (citation
omitted).
Finally, a reviewing court should not disturb the ALJ’s decision unless it falls outside the
available “zone of choice” defined by the evidence of record. Buckner v. Astrue, 646 F.3d 549,
556 (8th Cir. 2011). A decision does not fall outside that zone simply because the reviewing
court might have reached a different conclusion had it been the finder of fact in the first instance.
Id.; see also McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010) (explaining that if
substantial evidence supports the Commissioner’s decision, the court “may not reverse, even if
inconsistent conclusions may be drawn from the evidence, and [the court] may have reached a
different outcome”).
V.

Analysis of Issues Presented
In her brief, Plaintiff raises four issues. First, Plaintiff argues that the ALJ’s Residual

Functional Capacity (“RFC”) assessment was not based on substantial evidence due to an error

10

or errors in addressing the medical evidence. Second, Plaintiff contends that the ALJ failed to
provide sufficient, specific reasons for an adverse determination of Plaintiff’s credibility
regarding the severity of her symptoms. Third, Plaintiff argues that the VE’s testimony at step
five, regarding the available jobs for Plaintiff, was flawed for several reasons. Finally, Plaintiff
contends that the overall decision of the ALJ was contrary to the weight of the evidence in the
record. On this last point, Plaintiff relies on evidence submitted to the Appeals Council after the
ALJ’s decision.
As explained below, the Court finds substantial evidence in the record as a whole
supports the ALJ’s decision that Plaintiff is not disabled within the meaning of the Act.
Therefore, the Commissioner’s decision is affirmed.
A.

The ALJ’s Adverse Credibility Determination

The Court first addresses the ALJ’s adverse credibility determination. An evaluation of
Plaintiff’s credibility is necessary to a full consideration of the ALJ’s RFC determination. See
Wildman, 596 F.3d at 969 (explaining that an “ALJ’s determination regarding [a claimant’s]
RFC was influenced by [the ALJ’s] determination that [claimant’s] allegations were not
credible”) (citing Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005)). Moreover, the Eighth
Circuit has instructed that, in the course of making an RFC determination, the ALJ is to consider
the credibility of a plaintiff’s subjective complaints in light of the factors set forth in Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). See also 20 C.F.R. §§ 404.1529, 416.929. The
factors identified in Polaski include: a plaintiff’s daily activities; the location, duration,
frequency, and intensity of his symptoms; any precipitating and aggravating factors; the type,
dosage, effectiveness, and side effects of her medication; treatment and measures other than
medication she has received; and any other factors concerning her impairment-related

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limitations. See Polaski, 739 F.2d at 1322. An ALJ is not required to discuss each Polaski factor
and how it relates to a plaintiff’s credibility. See Partee v. Astrue, 638 F.3d at 860, 865 (8th Cir.
2011) (stating that “[t]he ALJ is not required to discuss methodically each Polaski consideration,
so long as he acknowledged and examined those considerations before discounting a [plaintiff’s]
subjective complaints”) (internal quotation and citation omitted); Samons v. Astrue, 497 F.3d
813, 820 (8th Cir. 2007) (stating that “we have not required the ALJ’s decision to include a
discussion of how every Polaski factor relates to the [plaintiff’s] credibility”).
This Court reviews the ALJ’s credibility determination with deference and may not
substitute its own judgment for that of the ALJ. “The ALJ is in a better position to evaluate
credibility, and therefore we defer to her determinations as they are supported by sufficient
reasons and substantial evidence on the record as a whole.” Andrews, 791 F.3d at 929 (citing
Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006)). See also Gregg v. Barnhart, 354 F.3d 710,
713 (8th Cir. 2003) (holding that “[i]f an ALJ explicitly discredits the [plaintiff’s] testimony and
gives good reasons for doing so, [the reviewing court] will normally defer to the ALJ’s
credibility determination”). In this case, the ALJ gave good reasons for discounting Plaintiff’s
credibility. Accordingly, the Court will defer to the ALJ in this regard.
Plaintiff contends that the ALJ failed to give sufficient reasons for the adverse credibility
finding because the ALJ allegedly mischaracterized the evidence. In particular, Plaintiff
contends that the ALJ mischaracterized the evidence regarding her compliance with medications
and medical advice. [ECF No. 20 at 4-5] 3 Upon a review of the entire record, however, the

3

Plaintiff does not raise any other significant issue regarding the details outlined in the ALJ’s
adverse credibility findings. Plaintiff has not identified any deficiencies regarding the ALJ’s
consideration of other factors addressed by the ALJ such as, for example, Plaintiff’s daily
activities, the conservative nature of her treatment, or the lack of any physician imposed
restrictions.

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Court concludes that the ALJ’s credibility determination did not, in fact, mischaracterize the
evidence regarding Plaintiff’s compliance.
Although the ALJ did not specifically mention Polaski and methodically apply each of
the factors, it is clear that the ALJ’s decision did, in fact, comply with the Polaski rubric. More
importantly to the present case, the ALJ’s adverse credibility determination did not turn solely on
Plaintiff’s compliance with her medication and medical advice. In fact, Plaintiff’s compliance
was but one of many factors the ALJ properly considered in this assessing Plaintiff’s credibility.
The ALJ noted that Plaintiff’s daily activities were not consistent with her claims of
disabling limitations. Plaintiff was able to drive regularly, perform light housework, and prepare
simple meals. (Tr. 19) The ALJ further noted that Plaintiff’s actual medical treatment was
routine and conservative in nature, which was inconsistent with her claims of disabling
symptoms and limitations. (Id.) As for her mental health, the ALJ noted that Plaintiff never
sought treatment from any specialist and that there had been no periods of even brief
decompensation. (Tr. 20) 4 Moreover, the ALJ observed that no treating or examining source
ever indicated that Plaintiff was disabled or experienced limitations greater than those reflected
in the ALJ’s RFC determination. (Id.) Likewise, none of Plaintiff’s treating sources ever placed
any significant restrictions on Plaintiff. To the contrary, her primary care physician wanted her
to increase her physical activity level by walking daily. (Id.) Furthermore, the opinions of two
consultative examiners were inconsistent with Plaintiff’s claims of disabling limitations. (Id.)
Therefore, even if the Court were to conclude that the ALJ somehow mischaracterized
the evidence of Plaintiff’s non-compliance, there would remain substantial evidence and good

4

See Whitman v. Colvin, 762 F.3d 701 (8th Cir. 2014) (explaining that, “[w]hile not dispositive,
a failure to seek treatment may indicate the relative seriousness of a medical problem”) (internal
quotations omitted).

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reasons for the ALJ’s adverse credibility determination. Moreover, the ALJ never stated that
Plaintiff was completely non-compliant. Rather, the ALJ correctly noted that “there have been
significant periods of time … during which [Plaintiff] has not been compliant with diet or
medication.” (Tr. 20) Substantial evidence supports the ALJ in this regard. (See, e.g., Tr. 283,
380) Plaintiff’s own argument admits that Plaintiff was, at times, not compliant with her
medication and other medical advice. The fact that there were also periods in which Plaintiff’s
compliance was good or fair misses the point. Thus, the ALJ did not err in relying, in part, on
Plaintiff’s non-compliance in discounting her credibility. See Holley v. Massanari, 253 F.3d
1088, 1092 (8th Cir. 2001); Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir. 2001). Because
the ALJ gave “good reasons” for discrediting Plaintiff’s subjective complaints, this Court will
defer to the ALJ. See Andrews, 791 F.3d at 929; Gregg, 354 F.3d at 713.
B.

RFC Assessment

Plaintiff contends that substantial evidence does not support the ALJ’s assessment of her
RFC. In this regard, Plaintiff notes that the ALJ gave great weight to the opinions of the two
consultative sources, including Dr. Leung. Dr. Leung conducted a physical examination. The
ALJ’s decision indicated that Dr. Leung limited Plaintiff to sedentary work. As Plaintiff
correctly points out, however, Dr. Leung’s report indicated that Plaintiff had the ability to lift and
carry up to ten pounds frequently, and up to fifty pounds occasionally. (Tr. 374) Dr. Leung also
concluded that Plaintiff could sit for eight hours, stand for four hours, and walk for two hours in
a workday. (Tr. 375) Plaintiff notes that such restrictions indicate an ability to perform work at
the medium exertion level, which is higher than the sedentary level found by the ALJ. Thus,
according to Plaintiff, it is unclear what, if any, evidence the ALJ relied on in making her RFC
determination. Plaintiff also argues that, “[d]espite the evidence and the ALJ’s determination

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that Plaintiff’s diabetes and neuropathy is severe, it is not clear what, if any limitations result
[from those impairments] and how they affect Plaintiff’s RFC.” [ECF No. 20 at 4]
A claimant’s RFC is the most that claimant can do despite her limitations. See 20 C.F.R.
§ 404.1545(a)(1). In determining a claimant’s RFC, the ALJ should consider “all the evidence in
the record, including the medical records, observations of treating physicians and others, and an
individual’s own description of [her] limitations.” Krogmeier v. Barnhart, 294 F.3d 1019, 1024
(8th Cir. 2002) (internal quotations omitted). While the RFC determination occurs at step four,
where the claimant has the burden of proof, the Eighth Circuit has explained that the ALJ has
primary responsibility for determining the RFC. Id.
As an initial matter, to the extent Plaintiff’s argument may be read to suggest that an
ALJ’s RFC must correspond to one of the medical opinions in the record, her argument is
incorrect. See Martise, 641 F.3d at 927 (explaining that ALJ’s are not required to “rely entirely
on a particular physician’s opinion or choose between the opinions [of] any of the claimant’s
physicians”) (internal quotations omitted).
The record before the Court indicates that the ALJ conducted a thorough and searching
review of the record in making her RFC determination. See id. The ALJ considered a detailed
review of the medical evidence, as well as third-party information. (Tr. 17-20) As discussed
above, in conducting her analysis, the ALJ gave detailed consideration to Plaintiff’s credibility.
It is also true, however, that Dr. Leung concluded that Plaintiff retained some of the physical
abilities consistent with the medium exertion level. But that discrepancy between the RFC and
Dr. Leung’s opinion focuses on only part of Dr. Leung’s opinion. More importantly, the fact that
the ALJ ultimately imposed greater limitations on Plaintiff’s RFC resulted in no prejudice to
Plaintiff. Thus, the fact that the ALJ relied on an opinion that included fewer restrictions on

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Plaintiff’s RFC amounts to no more than a harmless error in opinion writing technique. See
Byes v. Astrue, 687 F.3d 913, 918 (8th Cir. 2012); Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir.
2008).
Plaintiff, however, points to a more concrete concern regarding her RFC. According to
Plaintiff, the RFC stated in the ALJ’s decision does not appear to include any limitation related
to Plaintiff’s severe impairment of neuropathy. Having reviewed the ALJ’s decision and the
record, the Court concludes that substantial evidence does, in fact support the ALJ’s RFC
assessment, even in view of Plaintiff’s neuropathy. Furthermore, any error would be harmless in
this case.
At the time of the administrative hearing in this matter, the ALJ included restrictions
relative to Plaintiff’s neuropathy and shoulder problem. The hypothetical question posed to the
VE asked the VE to consider a person who, among other limitations, was limited to occasional
fingering and handling with both upper extremities. (Tr. 52) The record is clear that the ALJ’s
decision to deny benefits at step five was based on the VE’s testimony in response to that
hypothetical question. (Tr. 21)
After the administrative hearing, however, the ALJ referred Plaintiff to consultative
examiner Dr. Leung. Dr. Leung observed, among other things, that Plaintiff: (1) retained a full
range of motion in her joints; (2) had no muscle atrophy; (3) could oppose her thumb to each
finger on both hands; (4) had full pinch, arm, leg, and grip strength; and (5) no difficulties
getting on or off the exam table. (Tr. 370) Dr. Leung noted that Plaintiff had decreased
sensation to light touch in her hands, and moderate to severe decreased vibratory sensation. (Id.)
Although Dr. Leung agreed that Plaintiff exhibited signs of neuropathy in her hands and feet,
“[s]he was able to manipulate a small object with her hands fairly well.” (Tr. 371) For example,

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Plaintiff “was able to pick up a penny off of the table with both hands.” (Tr. 369) Similarly, Dr.
Leung concluded that Plaintiff retained the ability in both hands for frequent handling, fingering,
and feeling. (Tr. 376) Therefore, substantial medical evidence, received after the administrative
hearing, supported the ALJ’s conclusion that the actual effects of Plaintiff’s neuropathy did not
require the imposition of any exertional restrictions beyond those associated with sedentary
work. See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (explaining that limiting a
claimant to sedentary work is, by itself, “a significant limitation”).
Moreover, even if the ALJ erred and should have included an additional restriction
relative to Plaintiff’s neuropathy, such an error would be harmless in this case. First, one of the
representative jobs proffered by the VE in this case was for a surveillance system monitor.
According to the VE, that job required “no handling, fingering, reaching or feeling.” (Tr. 53)
Thus, Plaintiff’s neuropathy would not preclude her from working as a surveillance system
monitor. 5 Second, the question actually posed to the VE included a restriction relative to
Plaintiff’s neuropathy – “occasional fingering and handling with both upper extremities.” (Tr.
52) Thus, the Court can be confident in this case that any error in the ALJ’s alleged failure to
include a specific limitation to address Plaintiff’s neuropathy – other than sedentary work –
would be harmless. See Byes, 687 F.3d at 918.
C.

Alleged Step Five Errors

Plaintiff also contends that the ALJ erred at step five because “[t]he jobs that the VE
identified cannot be performed within the RFC that the ALJ found ….” [ECF No. 20 at 5] In
this regard, Plaintiff raises two different arguments. First, relying on an undated report from a
third-party vocational expert, Plaintiff argues that the Dictionary of Occupational Titles (“DOT”)
5

The Court addresses Plaintiff’s other concerns regarding the surveillance system operate job in
greater detail below.

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requirements for surveillance system monitor are inaccurate. According to Plaintiff, the
surveillance system monitoring position is actually light work, requires more training, and
involves more reaching, handling and fingering than indicated in the DOT. [ECF No. 20 at 6]
Second, Plaintiff argues that the jobs of call out operator and surveillance system monitor both
require a higher reasoning level than would be possible for a person such as Plaintiff, who would
be limited to simple work. [Id.] As explained below, neither of these arguments is persuasive in
this case.
1.

Bob Hammond Report

Plaintiff takes issue with the ALJ’s reliance on the VE’s testimony at step five, that
Plaintiff retained the RFC to work as a surveillance system monitor. Plaintiff’s argument in this
regard rests on a report from Bob Hammond, of Hammond Vocational Consultants, entitled
“Surveillance System Monitor, a Systematic Review of the Issues Encountered by a Vocational
Expert in Contested Social Security Disability Hearings, a Non-Scientific Approach.” In this
undated, and non-scientific, report the author concludes that “the job of surveillance system
monitor (SSM) does not exist as it is described in the DOT.” [ECF No. 20 at 5-6]
As the Commissioner correctly notes, the DOT is “the Commissioner’s primary source of
reliable job information.” See Fines v. Apfel, 149 F.3d 893, 895 (8th Cir. 1998) (citing 20
C.F.R. § 404.1566(d)(1)). Plaintiff has not identified any authority for her proposition that the
admittedly unscientific report, from a single source, somehow requires this Court to reject an
ALJ’s good-faith reliance on the DOT. For example, Plaintiff has not identified any cases in
which this report was found sufficient to reverse an ALJ’s otherwise justified reliance on a VE’s
testimony. Moreover, the Hammond report is undated. It appears from context that the research
for the Hammond report was conducted in 2008-09. (Tr. 405-06) Plaintiff offers no information

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at all to suggest that, even if the report was accurate at the time, it remains accurate now. More
importantly, the information in question was presented to the Commissioner’s Appeals Council
and rejected.
Thus, there is no credible argument that the VE’s testimony was in conflict, either
factually or legally, with the DOT. Accordingly, substantial evidence supports the ALJ’s
determination that Plaintiff retains the RFC to perform the work of a surveillance system
monitor, as that job is defined in the DOT. Nothing more was required of the ALJ.
2.

Reasoning Level Requirements

Plaintiff also argues that the ALJ’s reliance on the VE’s testimony was flawed because
the two representative jobs identified – surveillance system monitor and call out operator – both
require level three reasoning, while Plaintiff was limited to simple, repetitive tasks. [ECF No. 20
at 6] Plaintiff notes that level three reasoning requires “the ability to apply commonsense
understanding to carry out instructions furnished in written, oral, or diagrammatic form and deal
with problems involving several concrete variables in or from standardized situations.” [Id.]
According to Plaintiff, this type of reasoning exceeds her RFC, which limits her to simple,
repetitive tasks. In essence, Plaintiff argues that there was an unresolved conflict between the
DOT requirements and the VE’s testimony. See Moore v. Colvin, 769 F.3d 987 (8th Cir. 2014).
In support of her argument, Plaintiff refers the Court to a couple of cases from the Tenth
Circuit – Hackett v. Barnhart, 395 F.3d 1168 (10th Cir. 2005), and DeQuinze v. Astrue, No. 09cv-02874-PAB (D. Colo. Jan. 11, 2011). While these cases may lend support to Plaintiff’s
argument, her position has received a less receptive audience in this Circuit. In fact, this Court
recently rejected substantially the same argument on substantially similar facts.
In Filbert v. Colvin, an ALJ concluded that the claimant was limited to work that required

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only “simple instructions and non-detailed tasks.” 2015 WL 1474873 *9, No. 4:14 CV 209 JAR
(E.D. Mo. Mar. 31, 2015). In response to a hypothetical question from the ALJ, a VE opined
that such a claimant could perform as a mail sorter or surveillance system operator. Id. at *9-10.
Like Plaintiff herein, the claimant in Filbert argued that the ALJ erred in relying on the VE’s
opinion because the jobs in question required level three reasoning, which was allegedly
inconsistent with an RFC limited to simple work. Id. at *10. In Filbert, the Honorable John A.
Ross, United States District Judge, rejected substantially the same the argument raised herein,
explaining that “[t]he law in this Circuit is clear – any potential inconsistency between a
reasoning level of three and the ability to follow only simple instructions on non-detailed tasks is
not a conflict.” Id. at *11 (citing Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007) Welsh v.
Colvin, 765 F.3d 926, 930 (8th Cir. 2014)). This undersigned agrees.
The Court concludes, therefore, that the alleged inconsistency between reasoning level
three and Plaintiff’s RFC does not rise to a sufficient conflict as to require remand.
D.

Weight of the Evidence – New Psychiatric Evidence

Finally, Plaintiff argues that, additional evidence submitted to the Appeals Council (and
available to this Court), undermine the ALJ’s decision. In this regard, Plaintiff relies on an
opinion and records from Dr. John Crain, M.D., a psychiatrist who began treating Plaintiff after
the ALJ’s adverse decision in this matter. [ECF Doc. 20 at 7] Dr. Crain diagnosed Plaintiff with
bipolar disorder. (Tr. 388) According to Dr. Crain, Plaintiff was unable to work due to
problems with memory, attention, and dealing with normal stress. (Tr. 390-92) Plaintiff argues
that the information from Dr. Crain is supported by more timely records from her primary care
physician, Dr. Rickmeyer. The Court finds this argument unpersuasive.
“Under the regulations, the Appeals Council must evaluate the entire record, including

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any new and material evidence submitted to it after the ALJ’s decision.” Perks v. Astrue, 687
F.3d 1086, 1093 (8th Cir. 2012) (emphasis supplied) (citing 20 C.F.R. § 404.970(b)). “The
Appeals Council ‘shall consider the additional evidence only where it relates to the period on or
before the date of the [ALJ] hearing decision.’” Id. Stated differently, new “[e]vidence is
material if it is ‘relevant to claimant’s condition for the time period for which benefits were
denied.’” Roberson v. Astrue, 481 F.3d 1020, 1026 (8th Cir. 2007) (quoting Bergmann v. Apfel,
207 F.3d 1065, 1069 (8th Cir. 2000)).
In Roberson, the Eighth Circuit considered a similar situation to the instant case. In
Roberson, a claimant submitted additional records from her treating psychiatrist which were
prepared after the ALJ denied her claim. See 481 F.3d at 1026. The Appeals Council noted that
the new medical records described the claimant’s condition at the time they were prepared, “not
on an earlier date, and were therefore not material ….” Id.
In the present case, Plaintiff’s new evidence was submitted to, and considered by, the
Appeals Council after the ALJ issued the adverse decision. As in Roberson, Plaintiff’s new
evidence is not material because it does not relate to the time period for which benefits were
denied. The Appeals Council aptly noted that, “This new information is about a later time.
Therefore, it does not affect the decision about whether you were disabled on or before [the
ALJ’s adverse decision]…. If you want [the Commissioner] to consider whether you were
disabled after [the ALJ’s decision], you need to apply again.” (Tr. 2)
Having reviewed the new evidence from Dr. Crain, the Court agrees with the Appeals
Council. The information in question was not relevant and material because Dr. Crain’s opinions
did not consider Plaintiff’s condition during a period on or before the ALJ’s decision. In fact,
Dr. Crain never examined Plaintiff prior to the ALJ’s decision. Dr. Crain first examined Plaintiff

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in June 2013, more than six months after the ALJ denied Plaintiff’s claim. (Tr. 388) Dr. Crain
himself stated that he can offer no opinion as to Plaintiff’s condition prior to June 2013. 6 (Tr.
392) Thus, as in Roberson, the new medical evidence provided to the Appeals Council is not
material in the legal sense. Accordingly, Plaintiff’s argument that Dr. Crain’s opinions
undermine the ALJ’s decision is fatally flawed and her fourth point of error must be denied.
Substantial evidence supports the ALJ’s conclusion that Plaintiff retained the RFC for
simple repetitive tasks. The Court is mindful that it was Plaintiff’s burden to prove her disability
at steps one through four. It was not until well after the ALJ’s adverse decision that she
proffered the subject psychiatric evidence from Dr. Crain. Plaintiff sought almost no treatment
from a psychiatrist or psychologist for her alleged psychiatric problems prior to her
administrative hearing in this matter. Nonetheless, the ALJ developed the record in this regard
by relying on an examination of Plaintiff by psychiatric consultative examiner Paul Rexroat,
Ph.D.
The ALJ gave great weight to the opinions of Dr. Rexroat, including his opinion that
Plaintiff could perform at least simple tasks. (Tr. 19-20) Substantial evidence supports the ALJ
in this regard. Dr. Rexroat examined Plaintiff in May 2011, prior to the administrative hearing in
this matter. (Tr. 341) Dr. Rexroat diagnosed Plaintiff with major depression and anxiety. (Tr.
344) According to Dr. Rexroat, Plaintiff could understand and remember simple instructions,
sustain an appropriate concentration and persistence with simple tasks, and interact socially.

6

Dr. Crain’s opinions are included in Mental Residual Functional Capacity Questionnaire, dated
January 28, 2014. (Tr. 388-92) The final question on the questionnaire asked: “What is the
earliest date that the above description of limitations applies?” In response, Dr. Crain noted “1st
visit is all I can attest to.” (Tr. 392) Plaintiff’s first visit was on June 27, 2013. Thus, by its own
terms, Dr. Crain’s Mental Residual Functional Capacity Questionnaire did not cover the time
period for which benefits were denied and, therefore, was not material. Roberson, 481 F.3d at
1026.

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According to Dr. Rexroat, Plaintiff retained good social skills. (Tr. 343)
For the foregoing reasons, substantial evidence supports the ALJ’s RFC determination.
Moreover, the new medical evidence proffered by Plaintiff is not material.
VI.

Conclusion
For the reasons set forth above, the Commissioner’s decision denying benefits is

affirmed.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED.
A separate Judgment shall accompany this Memorandum and Order.

/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE
Dated this 5th day of November, 2015.

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