Deischer v. Colvin

Filing 22

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the relief requested in Plaintiffs Complaint and Brief in Support of Complaint is DENIED. [Docs. 1, 20.] IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the Commissioner affirming the decision of the administrative law judge. Signed by Magistrate Judge Nannette A. Baker on 5/25/2016. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DONALD DEISCHER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:15-CV-625 NAB

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of
Social Security’s final decision denying Donald Deischer’s application for disability insurance
benefits under the Social Security Act, 42 U.S.C. § 423 et seq. Deischer alleged disability due to
personality disorder, high blood pressure, learning disability, sleep apnea, bilateral finger
numbness and tingling, hypothyroid condition, passing out, possible seizures, and anxiety. (Tr.
174.) The parties have consented to the exercise of authority by the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Doc. 10.] For the reasons set forth below, the
Court will affirm the Commissioner’s final decision.
I.

Background
On April 23, 2012, Deischer applied for a period of disability and disability insurance,

alleging disability since January 1, 2011. (Tr. 150–56.) The Social Security Administration
(“SSA”) denied Deischer’s claim and he filed a timely request for hearing before an
administrative law judge (“ALJ”). (Tr. 98-104.) The SSA granted Deischer’s request for review
and an administrative hearing was held on July 31, 2013. (Tr. 49-84.) Deischer, represented by

counsel, testified at the hearing. (Tr. 55-76, 83.) On October 21, 2013, the ALJ found that
Deischer was not disabled as defined in the Society Security Act.

(Tr. 13-31.) Deischer

requested a review of the ALJ’s decision from the Appeals Council. (Tr. 7–9.) On February 9,
2015, the Appeals Counsel of the Social Security Administration denied Deischer’s request for
review.

(Tr. 1-4.)

The decision of the ALJ thus stands as the final decision of the

Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000).
Deischer filed this appeal on April 15, 2015. [Doc 1.] The Commissioner filed an
Answer and the certified Administrative Transcript on June 22, 2015. [Docs. 11, 12.] Deischer
filed a Brief in Support of the Complaint on September 28, 2015. [Doc. 19.] The Commissioner
filed a Brief in Support of the Answer on October 23, 2015. [Doc. 20.] Deischer then filed a
Reply Brief on November 5, 2015. [Doc. 21.]
II.

Standard of Review
The Social Security Act defines disability as an “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. § 423(d)(1)(A).
The SSA uses a five-step analysis to determine whether a claimant seeking disability
benefits is in fact disabled. 20 C.F.R. § 404.1520(a)(1). First, the claimant must not be engaged
in substantial gainful activity.

20 C.F.R. § 404.1520(a)(4)(i).

Second, the claimant must

establish that he or she has an impairment or combination of impairments that significantly limits
his or her ability to perform basic work activities and meets the durational requirements of the
Act.

20 C.F.R. § 404.1520(a)(4)(ii).

Third, the claimant must establish that his or her

impairment meets or equals an impairment listed in the appendix to the applicable regulations.

2

20 C.F.R. § 404.1520(a)(4)(iii). If the claimant’s impairments do not meet or equal a listed
impairment, the SSA determines the claimant’s residual functional capacity to perform past
relevant work. 20 C.F.R. § 404.1520(e).
Fourth, the claimant must establish that the impairment prevents him or her from doing
past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant meets this burden, the
analysis proceeds to step five. At step five, the burden shifts to the Commissioner to establish
that the claimant maintains the RFC to perform a significant number of jobs in the national
economy. Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). If the claimant satisfies all of the
criteria under the five-step evaluation, the ALJ will find the claimant to be disabled. 20 C.F.R.
§ 404.1520(a)(4)(v).
The standard of review is narrow. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001). This Court reviews decisions of the ALJ to determine whether the decision is supported
by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is
less than a preponderance, but enough that a reasonable mind would find adequate support for
the ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). The court determines
whether evidence is substantial by considering evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006).
The Court may not reverse just because substantial evidence exists that would support a contrary
outcome or because the Court would have decided the case differently. Id. If, after reviewing
the record as a whole, the Court finds it possible to draw two inconsistent positions from the
evidence and one of those positions represents the Commissioner’s finding, the Commissioner’s
decision must be affirmed. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004). To

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determine whether the ALJ’s final decision is supported by substantial evidence, the Court is
required to review the administrative record as a whole to consider:
(1) The 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
physician;
(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) The testimony of vocational experts based upon prior
hypothetical questions which fairly set forth the claimant’s
physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
III.

Discussion
Deischer presents three issues for review. Deischer claims that the ALJ improperly

analyzed the effects of his obesity, failed to provide adequate limitations within the RFC
determination to account for his frequent loss of consciousness, and improperly determined his
credibility. Defendant asserts that the ALJ’s decision is supported by substantial evidence in the
record as a whole and it should be affirmed.
A.

Consideration of Obesity

Although not stated clearly, it appears that Deischer is alleging that the ALJ failed to
develop the record regarding whether obesity may have contributed to a finding that his

4

syncopal 1 episodes medically equaled Listing 4.05. Deischer states that the ALJ’s analysis
regarding whether he met a Listing focused solely on mental impairments.
The ALJ has a duty to fully develop the record. Smith v. Barnhart, 435 F.3d 926, 930
(8th Cir. 2006). In some cases, this duty requires the ALJ to obtain additional medical evidence,
such as a consultative examination of the claimant, before rendering a decision. See 20 C.F.R.
§ 404.1519a(b). “There is no bright line test for determining when the [Commissioner] has
failed to develop the record. The determination in each case must be made on a case by case
basis.” Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994). A claimant for social security
disability benefits has the responsibility to provide medical evidence demonstrating the existence
of an impairment and its severity during the period of disability and how the impairment affects
the claimant’s functioning. 20 C.F.R. § 404.1512. The ALJ’s duty is not never-ending and an
ALJ is not required to disprove every possible impairment. McCoy v. Astrue, 648 F.3d 605, 612
(8th Cir. 2011).
The listing of impairments in Appendix 1 describes for each of the major body systems
impairments considered to be severe enough to prevent an individual from doing any gainful
activity, regardless of his or her age, education, or work experience. 20 C.F.R. § 404.1525(a).
Merely being diagnosed with a condition named in a listing and meeting some of the criteria will
not qualify a claimant for presumptive disability under the listing.” McCoy, 648 F.3d at 612; 20
C.F.R. § 404.1525(d) (an impairment cannot meet a listing based solely on a diagnosis). “For a
claimant to show that his impairment matches a listing, it must meet all of the specified medical
criteria.” Jones v. Astrue, 619 F.3d 963, 969 (8th Cir. 2010) (emphasis in original). “An
impairment that manifests only some of those criteria, no matter how severely, does not qualify.”

1

Syncope is a temporary suspension of consciousness due to generalized cerebral ischemia.” Dorland’s Illustrated
Medical Dictionary 1818 (37th ed. 2012). Syncope is commonly referred to as fainting.

5

Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990) (superseded by statute on other grounds). To
establish equivalency, a claimant must present medical findings equal in severity to all the
criteria for the one most similar listed impairment.” Carlson v. Astrue, 604 F.3d 589, 594 (8th
Cir. 2010). “The claimant has the burden of proving that his impairment meets or equals a
listing.” Id. at 593. “There is no error when an ALJ fails to explain why an impairment does not
equal one of the listed impairments as long as that overall conclusion is supported by the record.”
Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011).
“Obesity is a complex, chronic disease characterized by excessive accumulation of body
fat.” SSR 02-1p, 2002 WL 34686281 at * 2 (Sept. 12, 2002). “Because there is no listing for
obesity, [the SSA] will find that an individual with obesity meets the requirements of a listing if
he or she has another impairment that, in combination with obesity, meets the requirements of a
listing.” Id. at 5. Obesity, by itself, may also be medically equivalent to a listed impairment or if
an individual has multiple impairments, including obesity, in combination may be equivalent in
severity to a listed impairment. Id. “Obesity in combination with another impairment may or
may not increase the severity of functional limitations of the other impairments.” Id. at 6.
Listing 4.05 provides the following:
Recurrent arrhythmias 2, not related to reversible causes, such
as electrolyte abnormalities or digitalis glycoside or
antiarrhythmic drug toxicity, resulting in uncontrolled (see
4.00A3f), recurrent (see 4.00A3c) episodes of cardiac
syncope or near syncope (see 4.00F3b), despite prescribed
treatment (see 4.00B3 if there is no prescribed treatment),
and documented by resting or ambulatory (Holter)
electrocardiography, or by other appropriate medically
acceptable testing, coincident with the occurrence of syncope
or near syncope (see 4.00F3c).
20 C.F.R. Part 404, Subpart P, Appendix 1.
2

Arrhythmia is “a disturbance in or loss of regular rhythm; especially any variation from the normal rhythm of the
heartbeat.” Dorland’s Illustrated Medical Dictionary 133 (37th ed. 2012).

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In this case, the ALJ found that Deischer’s morbid obesity and syncopal/pre-syncopal
episodes were severe impairments. The ALJ did not find, however, that Deischer’s morbid
obesity and syncopal episodes singly or in combination met or equaled a listing. Deischer does
not provide any support for his contention that the ALJ should have consulted a medical expert
or ordered additional tests. “The ALJ is required to order medical examinations and tests only if
the medical records presented to him do not give sufficient medical evidence to determine
whether the claimant is disabled.” McCoy, 648 F.3d at 612. Therefore, “[a]n ALJ is permitted to
issue a decision without obtaining additional medical evidence so long as other evidence in the
record provides a sufficient basis for the ALJ’s decision.” Anderson v. Shalala, 51 F.3d 777, 779
(8th Cir. 1995).
The medical record does not support Deischer’s claim. The medical record indicates that
Deischer’s doctors did not know the source of his syncopal episodes.

In August 2012,

echocardiogram 3 showed left atrial enlargement, marked concentric left ventricular hypertrophy,
but no left ventricular enlargement. (Tr. 366.) Deischer participated in a Holter’s monitoring
test 4 and the results were consistent with premature ventricular contraction and possibly
supraventricular tachychardia 5. (Tr. 366.) Deischer’s original cardiac work-up was minimal and
the Holter monitoring showed no events during that time. (Tr. 345.) In April, June, and July
2013, Dr. Joseph Ruwitch, a cardiologist, indicated that he believed that the syncope symptoms

3

“Echocardiography is a noninvasive ultrasound procedure used to evaluate the structure and function of the heart.”
KATHLEEN DESKA PAGANA & TIMOTHY J. PAGANA, MOSBY’S MANUAL OF DIAGNOSTIC AND LABORATORY TESTS
877 (5th ed. 2014).
4
Holter monitoring is a “continuous recording of the electrical activity of the heart. … The patient is asked to carry
a diary and record daily activities, as well as any cardiac symptoms that may develop during the period of
monitoring. … The Holter monitor is used primarily to identify suspected cardiac rhythm disturbances and to
correlate these disturbances with symptoms such as dizziness, syncope, palpitations, or chest pain.” KATHLEEN
DESKA PAGANA & TIMOTHY J. PAGANA, MOSBY’S MANUAL OF DIAGNOSTIC AND LABORATORY TESTS 571 (5th ed.
2014).
5
Ventricular tachychardia is an “abnormally rapid ventricular rhythm with aberrant ventricular rhythm … usually in
excess of 150 per minute.” Dorland’s Illustrated Medical Dictionary 1868 (37th ed. 2012).

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appeared to be spells of falling asleep, possibly narcolepsy 6. (Tr. 397, 414, 418.) Dr. Ruwitch
recommended no further cardiac testing, because there was little to tie the syncope and
tachychardia together. (Tr. 419.) Dr. Barbara Lutey, the pulmonologist, stated that based on the
pulmonary function tests, Deischer’s lung abnormality is so minor that it is probably not
contributing much to symptoms. (Tr. 364.) She also noted that the etiology of his dizziness and
near syncope is unclear. (Tr. 364.) Dr. Rachel Darken, the neurologist, did not find any
neurological basis for his syncopal episodes. (Tr. 377-82.) Dr. Darken noted that he had not had
any hypnagogic or hypnopompic hallucinations. (Tr. 377, 380.) Dr. Gabriela deBruin 7, also a
neurologist, ruled out cataplexy8, because he actually lost consciousness not just muscle tone.
(Tr. 401.) Dr. deBruin opined that the dizziness or syncope could be due to arrhythmias or
excessive sleepiness. (Tr. 410.)
Plaintiff has not identified what additional testing the ALJ should have ordered. Deischer
has been examined by cardiology, pulmonology, and neurology specialists multiple times. All of
the doctors advised Deischer that a reduction of weight could relieve his symptoms. (Tr. 293,
379, 382, 405, 415, 419.) The record shows that the doctors thoroughly evaluated Deischer’s
symptoms in relation to his obesity and the ALJ’s findings are consistent with those evaluations.
See Boettcher, 652 F.3d at 863 (no error when ALJ fails to explain why impairment does not
equal listing as long as overall conclusion is correct); Heino v. Astrue, 578 F.3d 873, 881 (8th
Cir. 2009) (when an ALJ references claimant’s obesity during the claim evaluation process, such
review may be sufficient to avoid reversal). The ALJ mentions the effects of Deischer’s obesity
6

Narcolepsy is “recurrent, uncontrollable, brief episodes of sleep; often associated with hypnagogic or
hypnopompic hallucinations, cataplexy, and sleep paralysis.” Dorland’s Illustrated Medical Dictionary 1232 (37th
ed. 2012).
7
Dr. deBruin’s name is spelled various ways in the record. The Court will use the spelling contained in Dr.
deBruin’s signature.
8
Cataplexy is “a condition in which there are abrupt attacks of muscular weakness and hypotonia triggered by an
emotional stimulus such as mirth, anger, fear, or surprise. It is often associated with narcolepsy.” Dorland’s
Illustrated Medical Dictionary 1232 (37th ed. 2012).

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throughout the opinion. Based on a review of the evidence in the record as a whole, the Court
finds that the ALJ met her obligation to develop the record regarding Deischer’s obesity and its
possible relationship to his syncope.
B.

Credibility

Next, Deischer asserts that the ALJ erred in three portions of the credibility analysis. In
considering subjective complaints, the ALJ must fully consider all of the evidence presented,
including the claimant’s prior work record, and observations by third parties and treating
examining physicians relating to such matters as:
(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.
Polaski v. Heckler, 725 F.2d 1320, 1322 (8th Cir. 1984). It is not enough that the record contains
inconsistencies; the ALJ is required to specifically express that he or she considered all of the
evidence. Id. Although an ALJ may not discredit a claimant’s subjective pain allegations solely
because they are not fully supported by objective medical evidence, an ALJ is entitled to make a
factual determination that a claimant’s subjective pain complaints are not credible in light of
objective medical evidence to the contrary.” Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir.
2006). The ALJ, however, “need not explicitly discuss each Polaski factor.” Strongson v.
Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004). The ALJ need only acknowledge and consider
those factors. Id. Although credibility determinations are primarily for the ALJ and not the

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court, the ALJ’s credibility assessment must be based on substantial evidence. Rautio v. Bowen,
862 F.2d 176, 179 (8th Cir. 1988).
In this case, the ALJ found several reasons to discount Deischer’s credibility. The ALJ
noted inconsistencies between Deischer’s testimony and the doctor’s treatment notes, Deischer’s
claim that he had changed his diet and exercised being unsupported by any weight loss, noncompliance with treatment, and lack of severe clinical findings to lessen his credibility. (Tr. 1820, 26-29.)
1.

Failure to Follow Prescribed Treatment

Deischer contends that the ALJ erred in discounting his credibility for the failure to lose
weight before finding that he was disabled because of obesity or a combination of obesity and
another impairment. SSR 02-1p states
Before failure to follow prescribed treatment for obesity can
become an issue in a case, we must first find that the
individual is disabled because of obesity or a combination of
obesity and another impairment(s). Our regulations at 20
CFR 404.1530 and 416.930 provide that, in order to get
benefits an individual must follow treatment prescribed by
his or her physician if the treatment can restore the ability to
work, unless the individual has an acceptable reason for
failing to follow the prescribed treatment. We will rarely use
‘failure to follow prescribed treatment’ for obesity or to deny
benefits.
SSR 02-1p at *9.
Deischer testified that over ten years ago, he lost 183 pounds. (Tr. 68.) He also testified
that at the time of the hearing all of his food portions were significantly smaller now and he ate
two to three meals per day and a light-night snack. (Tr. 69.) The ALJ noted that several of
Deischer’s medical providers recommended that he lose weight, but he has not lost any weight
during the relevant time period. (Tr. 19.) The ALJ stated that Deischer’s claim that he has

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changed his diet is not credible, because he has not lost any weight and he successfully lost a
significant amount of weight several years ago. (Tr. 19-20.) Deischer asserts that the ALJ
violated the spirit and letter of SSR 02-1p, by framing Deischer’s lack of weight loss as a
credibility issue.
The ALJ can determine whether a claimant’s testimony is consistent with the medical
evidence of record. The ALJ acknowledged that there was a question whether weight loss was
recommended or prescribed, but found that the inconsistency between Deischer’s testimony and
his weight loss damaged his credibility.

The ALJ cannot speculate regarding whether a

claimant’s failure to lose weight is willful. “The notion that all [obese] people are self-indulgent
souls who eat more than anyone ought appears to be no more than the baseless prejudice of the
intolerant svelte. Modern studies debunk this myth.” Stone v. Harris, 657 F.2d 210, 212 (8th
Cir. 1981). Evidence of a previous weight loss is not substantial evidence of a present ability to
lose weight. Id. “The proper question is not whether [the claimant’s] obesity is clinically
remediable, but whether it is reasonably remediable by [him].” Brown v. Sullivan, 902 F.2d
1292, 1296 (8th Cir. 1990) (citing Stone, 657 F.2d at 212)). There is no evidence in the record
specifically assessing Deischer’s inability to lose weight was willful. Therefore, the ALJ erred in
assuming that Deischer’s lack of weight loss meant that he was dishonest about changing his
diet.
But, even if the ALJ erred in this portion of the credibility analysis, it is not reversible
error. The ALJ noted other instances in the record where Deischer failed to follow treatment
directed by his doctors. These instances of noncompliance included not getting lab tests and not
taking medicine as prescribed. (Tr. 285, 379, 382.) There is also a lack of severe clinical
findings. Because the ALJ had multiple reasons to discredit Deischer’s credibility, the error was

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harmless and Deischer has not shown that the ALJ would have ruled differently absent this error.
See Byes v. Astrue, 687 F.3d 913, 917 (8th Cir. 2012) (to show that an error was not harmless, a
claimant must provide some indication that the ALJ would have decided the case differently if
the error had not occurred).
2.

Work History

Deischer then claims that the ALJ did not afford him substantial credibility based on his
long and consistent work record. “[A] claimant with a good work record is entitled to substantial
credibility when claiming an inability to work because of a disability.” Nunn v. Heckler, 732
F.2d 645, 648 (8th Cir.1984.). A consistent work record supports the credibility of a disability
claimant. Hutsell v. Massarani, 259 F.3d 707, 713 (8th Cir. 2001). In this case, Deischer has
had a consistent work history earning over $20,000.00 per year between 2004 and 2010. (Tr.
165.) The ALJ did not specifically address Deischer’s substantial gainful employment as a
credibility issue, but the ALJ mentioned Deischer’s work as a corrections officer, which means
that the ALJ did consider the evidence. An ALJ is not required to discuss every piece of
evidence submitted. Wildman v. Astrue, 596 F.3d 959, 966 (quoting Black v. Apfel, 143 F.3d
383, 386 (8th Cir. 1998)). The Court agrees that a claimant’s credibility is enhanced by his long
and substantial work record.

A good work history, however, does not negate any other

credibility findings that may be made by the ALJ. In this case, although Deischer has a good
work history, the ALJ found other reasons to discredit his credibility. Therefore, the Court finds
that if there was any error in failing to specifically mention Deischer’s good work history, it was
harmless error. See Byes, 687 F.3d at 917 (to show that an error was not harmless, a claimant
must provide some indication that the ALJ would have decided the case differently if the error
had not occurred).

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3.

Consideration of Evidence Regarding Limited Sleep

Next, Deischer claims that the ALJ erred in discounting the credibility of Deischer and
his mother regarding his limited sleep, because Dr. Darken noted that Deischer only obtained
limited sleep during a sleep study.

Deischer specifically takes issue with the following

statements in the ALJ opinion:
Although the claimant and his mother have described daily
activities that are fairly limited, two factors weigh against
considering these allegations to be strong evidence in favor
of finding the claimant disabled. First, allegedly limited
daily activities cannot be objectively verified with any
reasonable degree of certainty. Secondly, even if the
claimant’s daily activities are truly as limited as alleged, it is
difficult to attribute that degree of limitation to the
claimant’s medical condition, as opposed to other reasons, in
view of the relatively weak medical evidence and other
factors discussed in this decision.
(Tr. 28.) Deischer’s assertion that the ALJ discounted Deischer and his mother’s testimony
regarding limited sleep is not supported by the record. The ALJ specifically notes the findings in
the sleep study that “only limited sleep was obtained at this pressure 9.” (Tr. 21.) The ALJ’s
opinion details numerous instances in the record of Deischer’s and his doctors’ notations
regarding his limited sleep, including objective medical tests. (Tr. 18-19, 21-24.) The ALJ did
not state that Deischer’s claims of limited sleep were not credible. Limited sleep during the
sleep studies was noted more than once in the record. (Tr. 291-92, 377, 380-82.) The ALJ
discounted Deischer and his mother’s claim that his daily activities were not as limited as they
claimed. Although limited sleep can affect daily activities, Deischer’s claim that the ALJ did not
consider evidence of limited sleep is not supported in the record. Moreover, the record showed

9

The Court notes that the ALJ referred to the wrong exhibit when referencing the results of the sleep study. Exhibit
1F in the Administrative Record includes Deischer’s school records and did not include any medical evidence.

13

that Deischer’s behavior contributed to his daytime sleepiness and limited sleep, including
napping during the day, not using his BiPap consistently, watching TV in bed, and lack of
regular wakeup times and bedtimes. (Tr. 378-79, 381-82.) Therefore, the Court finds that the
ALJ did not err in her consideration of Deischer’s claims of limited sleep and its effects on his
daily activities.
C.

RFC Determination

Finally, Deischer asserts that the ALJ’s RFC determination is not supported by
substantial evidence, because the ALJ failed to sufficiently allow for Deischer’s frequent loss of
consciousness in the RFC. The Commissioner responds the ALJ specifically accounted for the
syncopal episodes by limiting Deischer’s exposure to work hazards and limiting him to simple,
routine, repetitive tasks. (Tr. 17–18, 21.)
The RFC is defined as what the claimant can do despite his or her limitations, and
includes an assessment of physical abilities and mental impairments. 20 C.F.R. § 404.1545(a).
The RFC is a function-by-function assessment of an individual’s ability to do work related
activities on a regular and continuing basis. 10 SSR 96-8p, 1996 WL 374184, at *1 (July 2,
1996). It is the ALJ’s responsibility to determine the claimant’s RFC based on all relevant
evidence, including medical records, observations of treating physicians and the claimant’s own
descriptions of his limitations.

Pearsall, 274 F.3d at 1217.

RFC is a medical question.

Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). An RFC determination made by an
ALJ will be upheld if it is supported by substantial evidence in the record. See Cox, 471 F.3d at
907. In making a disability determination, the ALJ shall “always consider the medical opinions
in the case record together with the rest of the relevant evidence in the record.” 20 C.F.R.

10

A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent work schedule. SSR
96-8p, 1996 WL 374184, at *1.

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§ 404.1527(b). “A disability claimant has the burden to establish [his] RFC.” Eichelberger, 390
F.3d at 591 (citing Masterson, 363 F.3d at 737).
The ALJ determined that Deischer had the severe impairments of morbid obesity, severe
obstructive sleep apnea, history of syncope/pre-syncopal episodes, vertigo, impulse control
disorder, not otherwise specified, antisocial personality disorder, and learning disorder. (Tr. 15.)
The ALJ found that Deischer has the RFC to perform sedentary work with the following
limitations: (1) never climb ladders, ropes, or scaffolds; (2) occasionally climb ramps and stairs
and balance and stoop; (3) avoid all exposure to hazards, including unprotected heights, moving
machinery, and dangerous machinery; (4) avoid even moderate exposure to vibration; (5) limited
to simple, routine, repetitive tasks in a low stress job, with only occasional changes in the work
setting: (6) unable to perform at a production rate pace, but can perform goal-oriented work that
can be checked at the end of the work shift; and (7) limited to occasional interaction with coworkers and the public.
In her opinion, the ALJ stated that the following RFC limitations were included to
address Deischer’s syncope episodes: sedentary work; seizure precautions, which include never
climbing ladders, ropes, or scaffolds, avoiding all exposure to hazards, including vibration; and
limited to simple, routine, and repetitive tasks. (Tr. 26.) Deischer contends that the RFC
limitations are insufficient, because they do not account for on the job occurrence of syncopal
episodes three to four times per week. Deischer testified that he had at times experienced
“passing out” three to four times per week at the time of the hearing, but he had previously only
experienced the episodes two to three times per month. (Tr. 64.) Deischer testified that the
episodes lasted between 30 seconds and a couple of minutes. (Tr. 65.) He testified that he had
blacked out and fell to the floor while walking or going to the bathroom. (Tr. 64.) The

15

vocational expert testified that if a person just nods off and wakes up in a few minutes, there
would be no loss of production and disruption to the workplace so it would be a non-issue. (Tr.
82.) The vocational expert also testified that if the person fell out of their seat during an episode
that would be disruptive and if it continually happened, it could lead to their dismissal. (Tr. 82.)
Based on a review of the evidence in the record as a whole, the Court finds that
substantial evidence supports the ALJ’s RFC determination regarding Deischer’s syncopal
episodes. The ALJ’s credibility findings and the detailed medical record provide support for the
ALJ’s limitations. A review of the record as a whole demonstrates that Deischer has some
restrictions in his functioning and ability to perform work related activities, however, he did not
carry his burden to prove a more restrictive RFC determination. See Pearsall, 274 F.3d at 1217
(it is the claimant’s burden, not the Social Security Commissioner’s burden, to prove the
claimant’s RFC). Therefore, the Commissioner’s decision will be affirmed.
Accordingly,
IT IS HEREBY ORDERED that the relief requested in Plaintiff’s Complaint and Brief
in Support of Complaint is DENIED. [Docs. 1, 20.]
IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the
Commissioner affirming the decision of the administrative law judge.

Dated this 25th day of May, 2016.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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