Vogler v. Colvin

Filing 18

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that the decision of the Commissioner denying benefits is affirmed. A separate judgment in accordance with this Memorandum and Order is entered this date. Signed by District Judge Catherine D. Perry on 9/9/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CATHERINE FAY VOGLER,

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

Case No. 4:14CV1531 CDP

MEMORANDUM AND ORDER
This is an action for judicial review of the Commissioner’s decision denying
Catherine Fay Vogler’s application for disability insurance benefits under Title II
of the Social Security Act, 42 U.S.C. §§ 405(g), et seq. Judicial review of the
Commissioner’s final decision under Title II is available under Section 205(g) of
the Act. 42 U.S.C. § 405(g). For reasons that follow, I find that the
Commissioner’s decision is supported by substantial evidence on the record as a
whole.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On March 13, 2011, Vogler protectively filed a Title II application for a
period of disability and disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401 et seq., alleging disability beginning September 18,

2010.1 Vogler cited degenerative disk disease, depression, carpal tunnel syndrome,
high blood pressure, and bladder problems as her limiting conditions. Tr. 247.
Vogler’s claim was initially denied, and she appealed the denial to an
administrative law judge (ALJ).2 After a hearing on February 11, 2013, held by
video conference, the ALJ determined that Vogler was not “disabled” under the
Act. The Appeals Council denied Vogler’s request for review, and the ALJ’s
decision stands as the final decision by the Commissioner.
In the decision issued on March 1, 2013, the ALJ made the following
findings:
1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2014.
2. The claimant has not engaged in substantial gainful activity
since September 18, 2010, the alleged onset date (20 CFR 404.1571 et
seq.).
3. The claimant has the following severe impairments: lumbar
degenerative disc disease and radiculopathy, obesity, depression, and
an anxiety disorder (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination
of impairments that meets or medically equals the severity of one of

1

Vogler also applied for Supplemental Security Income disability benefits on March 13, 2011.
That application was denied, because Vogler was deemed to have monthly income in excess of
the allowed amount. Vogler did not appeal that denial.
2

Missouri participates in a modified form of the disability determination procedures, which
eliminates the reconsideration step in the administrative appeals process. See 20 C.F.R.
§§ 404.906, 404.966. Vogler’s appeal proceeded directly from initial denial to ALJ review.

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the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that
the claimant has the residual functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a) except she can never climb
ladders, ropes, or scaffolds; can never crawl; can occasionally climb
ramps and stairs; can occasionally balance, stoop, kneel, and crouch;
must avoid all exposure to excessive vibration; must avoid all
exposure to hazards such as unprotected heights and operational
control of moving machinery; and is limited to simple, routine,
repetitive tasks.
6. The claimant is unable to perform any past relevant work
(20 CFR 404.1565).
7. The claimant was born on August 3, 1965 and was 45 years
old, which is defined as a younger individual age 45-49, on the
alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able
to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the
determination of disability because using the Medical-Vocational
Rules as a framework supports a finding that the claimant is “not
disabled,” whether or not the claimant has transferable job skills (See
SSR 82-41and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in
the Social Security Act, from September 18, 2010, through the date of
this decision (20 CFR 404.1520(g)).

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Vogler raises two primary issues on appeal. First, Vogler contends that the
ALJ failed to give controlling weight to the opinion of Dr. Graven or otherwise to
consider properly Dr. Graven’s opinion evidence. Second, Vogler argues the ALJ
failed to properly consider her credibility. Vogler alleges that because of these
failures, the ALJ’s decision was not supported by substantial evidence.
DISCUSSION
Legal Standards
A court’s role on review is to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. Gowell v.
Apfel, 242 F.3d 793, 796 (8th Cir. 2001).
To determine whether the decision is supported by substantial evidence, the
court is required to review the administrative record as a whole and to consider:
(1) credibility findings made by the Administrative Law Judge;
(2) the claimant’s age, education, background, and work history;
(3) medical evidence from treating and consulting physicians;
(4) the claimant’s subjective complaints relating to exertional and
nonexertional impairments;
(5) any corroboration by third parties of the claimant’s impairments;
and
(6) testimony of vocational experts, when required, which is based
upon a proper hypothetical question.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir.
1980).

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Disability is defined in social security regulations as the inability to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or which has
lasted or can be expected to last for a continuous period of at least one year. 20
C.F.R. § 404.1505(a). In determining whether a claimant is disabled, the
Commissioner must evaluate the claim using a five-step procedure.
First, the Commissioner must decide if the claimant is engaging in
substantial gainful activity. If so, then the claimant is not disabled. 20 C.F.R.
§ 404.1520(b).
Next, the Commissioner determines if the claimant has a severe impairment
that significantly limits the claimant’s physical or mental ability to do basic work
activities. 20 C.F.R. § 1520(C). If the claimant’s impairment is not severe, she is
not disabled.
If the claimant has a severe impairment, the Commissioner evaluates
whether the impairment meets or exceeds a listed impairment found in 20 C.F.R.
Part 404, Subpart P, Appendix 1. If the impairment satisfies a listing in Appendix
1, the Commissioner will find the claimant disabled.
If the Commissioner cannot make a decision based on the claimant’s current
work activity or on medical facts alone, and the claimant has a severe impairment,
the Commissioner reviews whether the claimant has the Residual Functional

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Capacity (RFC) to perform her past relevant work. If the claimant can perform her
past relevant work, she is not disabled.
If the claimant cannot perform her past relevant work, the burden of proof
shifts and the Commissioner must evaluate whether the claimant can perform other
work in the national economy. If not, the Commissioner declares the claimant
disabled. See Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); 20 C.F.R.
§ 404.1520.
The ALJ retains the responsibility of developing a full and fair record in the
non-adversarial administrative proceeding. Hildebrand v. Barnhart, 302 F.3d 836,
838 (8th Cir. 2002).
Analysis
1. Mild Clinical Findings
The ALJ discredited Vogler’s subjective testimony and opinions from her
treating source and daughter, in part, because they conflicted with what he
determined to be “mild” clinical evidence. Vogler argues that this finding is not
supported by substantial evidence because a December 2010 EMG revealed results
consistent with lower lumbar radiculopathy (Tr. 398) and because a March 2012
X-ray showed “significant” degenerative disk disease at the L2-L3 and L3-L4
vertebrae (Tr. 402).

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Substantial evidence is less than preponderance, but is enough so that a
reasonable mind would find it adequate to support the ALJ’s conclusion. Prosch v.
Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000). As long as there is substantial
evidence on the record as a whole to support the Commissioner’s decision, a court
may not reverse it because substantial evidence exists in the record that would have
supported a contrary outcome. Id. Nor may the court reverse because the court
would have decided the case differently. Browning v. Sullivan, 958 F.2d 817, 822
(8th Cir. 1992). In determining whether existing evidence is substantial, a court
considers “evidence that supports it.” Singh v. Apfel, 222 F.3d 448, 451 (8th Cir.
2000) (quoting Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999)). Where
the Commissioner’s findings represent one of two inconsistent conclusions that
may reasonably be drawn from the evidence, however, those findings are
supported by substantial evidence. Pearsall v. Massanari, 274 F.3d 1211, 1217
(8th Cir. 2001) (internal citation omitted).
The ALJ considered the EMG and X-ray imaging but ultimately determined
that the medical evidence as a whole reflected only mild conditions. MRIs of
Vogler’s spine revealed only mild degenerative changes with minimal disk
protrusion at L3-L4; they showed no evidence for overt central canal or neural
foraminal stenosis. Tr. 376. In April 2012, Vogler reported that her Percocet
prescription brought her back pain to tolerable levels. Tr. 393. That same day, she

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stated that the pain and tingling she experienced in her right leg was improving
with Gabapentin, which eased her nerve pain, and that she wanted to resume using
her treadmill when the Gabapentin was working. Id. Although the March 2012 Xray showed significant degenerative disk disease, Vogler reported in June of 2012
that she was “not interested in surgery.” Tr. 421. Viewing this evidence as a
whole, the ALJ’s characterization of Vogler’s spinal conditions as “mild” is
supported by substantial evidence.
2.

Treating Source

Vogler argues that the ALJ failed to give controlling weight to Dr. Graven,
who she argues was a “treating source.” Dr. Graven completed a Social Security
Physician’s Assessment form and stated therein that Vogler could be expected
occasionally to experience pain levels sufficiently severe as to interfere with her
ability to maintain attention and concentration. He estimated that Vogler could
stand/walk 2-4 hours without interruption out of each 8-hour workday. Dr. Graven
gave the same estimate for sitting, and he stated that Vogler would need to rest for
a total of 1-2 hours per 8-hour workday. He asserted that Vogler had no physical
function restrictions for reaching, handling, or fingering. Although the form
provided a space to write the medical findings supporting those opinions, Dr.
Graven left that area blank. Finally, Dr. Graven’s response to the question of
whether Vogler’s condition would reasonably prevent her from engaging in

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sustained full-time employment at the sedentary level was: “Unsure – t[reatment]
has not been optimized.”
Social Security regulations require the ALJ to consider medical source
opinions when assessing a disability claimant’s RFC. See 20 C.F.R § 404.1527(b).
Medical source opinions are statements from physicians, psychologists, or other
acceptable medical sources that reflect judgments about the nature and severity of
the claimant’s impairments. See 20 C.F.R. § 404.1527(a)(2).
If a treating source medical opinion is well supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in the case record, it will be afforded
“controlling weight.” 20 C.F.R. § 404.1527(c)(2). However, such an opinion is
not automatically controlling. Brown v. Astrue, 611 F.3d 941, 951 (8th Cir. 2010)
(treating source opinion “does not automatically control in the face of other
credible evidence on the record that detracts from that opinion” (internal quotation
marks omitted)). An ALJ may discount the opinion of a treating physician if it is
inconsistent with the physician’s clinical treatment notes. Halverson v. Astrue, 600
F.3d 922, 930 (8th Cir. 2010) (citing Davidson v. Astrue, 578 F.3d 838, 842 (8th
Cir. 2009)). It is also permissible for an ALJ to discount a treating physician’s
opinion that is inconsistent with the record as a whole. See id. at 931 (citing Travis
v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007) (“If the doctor’s opinion is

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inconsistent with or contrary to the medical evidence as a whole, the ALJ can
accord it less weight.”)). “When an ALJ discounts a treating physician’s opinion,
he should give good reasons for doing so.” Martise v. Astrue, 641 F.3d 909, 925
(8th Cir. 2011) (citation omitted).
The ALJ stated that he gave little weight to the opinion of Dr. Graven
because he did not document any clinical evidence to support his findings. This is
an appropriate reason to discount a treating opinion. Cf. 20 C.F.R.
§ 404.1527(c)(3) (affording more weight to opinions supported by relevant medical
evidence).
Vogler argues that Dr. Graven’s opinion should nonetheless be entitled to
some deference under the factors set forth in 20 C.F.R. § 404.1527. Those relevant
factors include whether the medical source examined the claimant; whether the
medical source was a treating source; the length, nature, and extent of the medical
source’s treatment of the claimant; the evidence provided by the medical source in
support of her opinion; the consistency of the medical source’s opinion with the
evidence of record as a whole; the medical source’s specialty; and any other factors
that support or contradict the medical source’s opinion. See 20 C.F.R.
§ 404.1527(c). Vogler argues that the ALJ failed to evaluate the opinion evidence
based on these factors and cites specifically to Dr. Graven’s specialty of
orthopaedic surgery and the consistency of his opinion with the record as a whole.

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The ALJ is not required to discuss every medical source factor in 20 C.F.R.
§ 404.1527(c) when evaluating treating-source opinions. See Wheeler v. Apfel, 224
F.3d 891, 896 (8th Cir. 2000); Derda v. Astrue, No. 4:09CV01847 AGF, 2011 WL
1304909, at *10 (E.D. Mo. Mar. 30, 2011). In addition to addressing the absence
of cited evidence, the ALJ noted that Dr. Graven’s opinion appeared to reflect
Vogler’s self-reported limitations instead of the “rather mild objective clinical
findings.” The ALJ also noted that Dr. Graven qualified his opinion by stating that
Vogler had not yet received optimized treatment. Although the ALJ misstated Dr.
Graven’s specialty as that of neurosurgery instead of orthopaedics, it does appear
that the ALJ considered Dr. Graven a specialist in the type of treatment (spinal)
received by Vogler. Thus, contrary to Vogler’s arguments, the ALJ discussed
those factors most relevant to Dr. Graven’s opinion. The dispositive question,
therefore, becomes whether the reasons provided by the ALJ for discounting the
opinion is supported by substantial evidence.
The ALJ found that Dr. Graven’s opinion appeared to be based on Vogler’s
self-reported limitations. A conclusory statement that is based on the claimant’s
subjective statements is entitled to little weight when unsupported by objective
medical evidence. Brown v. Chater, 87 F.3d 963, 964 (8th Cir. 1996) (citing Woolf
v. Shalala, 3 F.3d 1210, 1214 (8th Cir. 1993)). The Commissioner notes that the
opinion set forth in Dr. Graven’s Physician Assessment followed a seven-month

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gap in treatment. The opinion does not reference any supporting medical findings,
and the record is devoid of any contemporaneous examination records by Dr.
Graven. Under those circumstances, the ALJ’s determination that Dr. Graven’s
opinion is based on a self-report is supported by substantial evidence.
The ALJ found that the “mild” clinical findings conflicted with Dr. Graven’s
assessment. As discussed above, the ALJ’s determination as to the severity shown
in the clinical record is supported by substantial evidence. The Commissioner
points to additional inconsistencies in the record that undermine Dr. Graven’s
opinion. For example, Dr. Graven assessed Vogler as being able to sit for 2-4
hours without interruption; however, Vogler testified that she needed to alternate
sitting and standing every 10-15 minutes. Tr. 140–41. Dr. Graven also
acknowledged that he was “unsure” whether Vogler’s condition would preclude
her from working at the sedentary level because her treatment “has not been
optimized.” Tr. 443. The ALJ also found Dr. Graven’s opinion to be logically
inconsistent, because he stated that Vogler could stand/walk for 2-4 hours, could
sit for 2-4 hours, and needed to rest for 1-2 hours per 8-hour day. Those
statements do not necessarily create a logical inconsistency.3 Nonetheless, for the
other reasons discussed above, I find that the ALJ’s decision to discount Dr.
Graven’s opinion was supported by substantial evidence.
3

For example, Vogler might need to stand/walk for two hours, sit for four, and rest for two.

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3. Credibility
The ALJ found that Vogler’s statements regarding the intensity, persistence,
and limiting effects of her symptoms to be not entirely credible. Vogler challenges
this assessment. In particular, Vogler argues that the ALJ did not address her
activities of daily living, improperly found that the clinical evidence was “mild,”
failed to recognize that she had been prescribed additional pain medications and
increased dosage, and failed to consider the effectiveness and side effects of her
medication.
When evaluating evidence of pain or other subjective complaints, the ALJ is
never free to ignore the subjective testimony of the plaintiff, even if it is
uncorroborated by objective medical evidence. Basinger v. Heckler, 725 F.2d
1166, 1169 (8th Cir. 1984). The ALJ may, however, disbelieve a claimant’s
subjective complaints when they are inconsistent with the record as a whole. See
e.g., Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). In considering the
subjective complaints, the ALJ is required to consider the factors set out by Polaski
v. Heckler, 739 F.2d 1320 (8th Cir. 1984), which include: “(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; (4) the dosage,
effectiveness and side effects of any medication; and (5) the claimant’s functional
restrictions.” Masterson v. Barnhart, 363 F.3d 731, 738 (8th Cir. 2004) (citing

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Polaski, 739 F.2d at 1322). The ALJ need not discuss each Polaski factor as long
as the he considers the analytical framework. Tucker v. Barnhart, 363 F.3d 781,
783 (8th Cir. 2004). When an ALJ explicitly finds that the claimant’s testimony is
not credible and gives good reasons for the findings, the court will usually defer to
the ALJ’s finding. Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007).
The ALJ found that while the evidence documents significant lumbar
impairments, they did not support the claimed level of pain or functional
limitations. The ALJ credited Vogler’s good work record and noted that a lack of
insurance and financial difficulties impaired her ability to obtain treatment. Still,
the ALJ relied heavily on medical evidence. He noted the mild MRI findings, the
lack of nerve root compromise, and lack of significant canal stenosis, as well as
favorable reports from physical therapists. As discussed above, the ALJ did not err
in determining that Vogler’s medical records reflected mild conditions.
Physical therapy notes from April 2012 state that Vogler was unable to walk
for exercise, could not cook and bake, and required some assistance with
showering. Tr. 395. At that time, Vogler reported that she was able to do most
basic activities with pain and modifications. Vogler also reported that although she
has constant back pain, Percocet brings it to a “tolerable level.” Her Gabapentin
improves the pain and tingling in her right leg. The physical therapist placed
moderate restrictions on her piriformis muscles and hamstrings and noted she

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could not raise onto her toes and could only minimally raise onto her heels. Vogler
performed 27 minutes of exercise activities “well” and was instructed to perform
them at home. Tr. 396.
From May to June 2012, Dr. Graven noted L4 tenderness and positive
straight leg reflex. He recommended back surgery and steroidal injections. Vogler
reported that she did not get the injections because she had trouble scheduling the
appointment and that she was “not interested in surgery.” Tr. 421. As of her
August 2012 visit to her primary care provider, Vogler still had not scheduled her
injections. Although Vogler had some edema in the extremities, hepatic
enlargement, and abdominal tenderness, her physical examination was otherwise
unremarkable. Tr. 434.
Vogler’s medical records show that she consistently complained of back
pain and leg tingling and numbness. But Vogler’s delay in obtaining pain relief
through injections and her lack of interest in surgery undermine her credibility and
support the ALJ’s determination that her pain was not as severe as alleged. See
Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004) (finding it permissible for
ALJ to consider lack of evidence that claimant sought stronger treatment when
determining credibility).

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The ALJ found Vogler to lack credibility, in part, because none of her
healthcare providers added “more potent opiate medications” to her Percocet,4
Feldene,5 and Gabapentin6 prescriptions. Vogler argues that the ALJ failed to
recognize that healthcare providers added pain medications, such as Feldene, and
increased the dosage of existing pain medications.
In December 2010, Vogler’s pain specialist increased her Percocet from 5325 mg, 1 Tablet as needed every 6 hours to 7.5-500 mg, 1 tablet as needed every
6 hours. Tr. 344. The Percocet dosage was reduced to 7.5-325 mg per tablet in
February 2011. Tr. 359. Her doctor also prescribed Lyrica7 in December 2010.
Tr. 344. However, in January 2011, that prescription was discontinued due to
somnolence and replaced with Gabapentin. Tr. 360. In March 2012, her doctor
added Feldene.
4

Percocet is a combination of oxycodone, an opiate analgesic used to relieve moderate to severe
pain, and acetaminophen. Medline Plus, (Last Revised June 15, 2015),
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a682132.html. Acetaminophen is used to
relieve moderate pain and is an analgesic and antipyretic (fever reducer). Medline Plus, (Last
Revised August 15, 2014), https://www.nlm.nih.gov/medlineplus/druginfo/meds/a681004.html.
5

Feldene is also known as Piroxicam, and is a non-steroidal anti-inflammatory medication
(NSAID) that is used to relieve pain, tenderness, swelling, and stiffness caused by arthritis.
Medline Plus, (Last Revised January 1, 2011),
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a684045.html.
6

Gabapentin is an anticonvulsant used to control seizures and to relieve nerve pain and restless
leg syndrome. Medline Plus, (Last Revised July 15, 2011),
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a694007.html.
7

Lyrica is an anticonvulsant that is used to relieve nerve pain occurring in the extremities.
Medline Plus, (Last Revised September 1, 2009),
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a605045.html.

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Although the ALJ did not address the additions of Feldene and the
substitution of Gabapentin for Lyrica in the analysis portion his credibility
determination, he did state that no doctor added opiate medications to those
prescriptions. That conclusion, although narrow, is supported by the record.
Moreover, the record reflects that Vogler’s medications treated different
conditions. See Tr. 313 (Gabapentin: nerve spasms; Percocet: pain; Piroxicam
(Feldene): anti-inflammatory); see also Tr. 395 (describing Percocet as bringing
back pain to tolerable level; Gabapentin as improving nerve pain). The presence of
multiple prescription medications supports complaints of pain. Kelley v. Callahan,
133 F.3d 583, 589 (8th Cir. 1998). However, Vogler’s credibility as to the extent
of that pain remains undermined by her failure to follow through on the injections
and her expressed disinterest in surgery. See Gowell, 242 F.3d at 797. To the
extent that Vogler argues the ALJ failed to address the side effects of her
medications, that argument is undermined by the absence from the record of any
evidence of side-effects beyond somnolescence.8
Finally, Vogler argues that the ALJ failed to credit the third-party opinion
offered by her daughter and Vogler’s own testimony regarding her ability to
perform daily activities. The Commissioner correctly points to inconsistencies

8

Vogler reported affirmatively that she had no side effects from Naprosyn and Percocet.
Tr. 344.

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within the record that support the ALJ’s assessment. For example, Vogler testified
that she can no longer open bottles or pull-tabs or perform small manipulations.
Tr. 147. Although the medical records show that Vogler had a history of carpal
tunnel surgery, Tr. 352, they do not show that Vogler reported any continuing
difficulties of the sort she now alleges. Additionally, Vogler reported spending
one to two hours daily cleaning and ten to fifteen minutes every-other day
trimming roses. These activities are inconsistent with her allegations and thereby
undermine Vogler’s credibility as to other sources of pain. Johnson v. Apfel, 240
F.3d 1145, 1148 (8th Cir. 2001) (“Acts which are inconsistent with a claimant’s
assertion of disability reflect negatively upon that claimant’s credibility.”).
The ALJ’s decision shows that he explicitly considered the majority of the
record, including Vogler’s work history, complaints of pain, descriptions of daily
activities, descriptions of her to perform physical therapy, and the effect of
medications on her pain. In doing so, the ALJ articulated the inconsistencies
between the record and Vogler’s subjective statements. I find that there is
substantial evidence to support the ALJ’s credibility assessment.
4.

Residual Functional Capacity Determination

Vogler implicitly contends that the ALJ’s Residual Functional Capacity
(RFC) determination is not supported by substantial evidence because of the
above-discussed arguments. A claimant’s RFC is what she can still do despite her

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limitations. 20 C.F.R. § 404.1545(a). The RFC is determined by the ALJ upon
review of all relevant record evidence. Krogmeier v. Barnhart, 294 F.3d 1019,
1023 (8th Cir. 2002). As discussed above, the ALJ’s decisions with respect to
Vogler’s credibility and as to the medical evidence are supported by substantial
evidence.
The ALJ determined that Vogler had the RFC to perform sedentary work as
defined in 20 CFR 404.1567(a) except she can never climb ladders, ropes, or
scaffolds; can never crawl; can occasionally climb ramps and stairs; can
occasionally balance, stoop, kneel, and crouch; must avoid all exposure to
excessive vibration; must avoid all exposure to hazards such as unprotected heights
and operational control of moving machinery; and is limited to simple, routine,
repetitive tasks. This determination reflects, in part, the assessment of Dr. Graven.
See Tr. 444 (opining on postural activities, functional restrictions, and
environmental restrictions). The ALJ’s RFC determination is based on substantial
evidence.
The ALJ posed the RFC as a hypothetical to a vocational expert, who
testified that such a person could perform any of three different jobs existing in the
local and national economies. Testimony from a vocational expert based on a
properly phrased hypothetical constitutes substantial evidence. Roe v. Chater, 92
F.3d 672, 675 (8th Cir. 1996). As such, the ALJ’s determination that Vogler is not

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disabled is supported by substantial evidence of record. The ALJ did not commit
reversible error.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner
denying benefits is affirmed.
A separate judgment in accordance with this Memorandum and Order is
entered this date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 9th day of September, 2015.

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