Pendergrass v. Colvin
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the relief requested in Plaintiff's Complaint and Brief in Support of Complaint is DENIED. [Docs. 1 , 17 .] 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 8/10/2016. (GGB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case No. 4:15-CV-974 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 Robert Pendergrass’ application for disability insurance
benefits under the Social Security Act, 42 U.S.C. § 423 et seq. Pendergrass alleged disability
due to seizures. (Tr. 296.) 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. 9.] The
Court has reviewed the parties’ briefs and the entire administrative record, including the hearing
transcripts and the medical evidence. The Court heard oral argument in this matter on August
10, 2016. For the reasons set forth below, the Court will affirm the Commissioner’s final
Issues for Review
Pendergrass presents two issues for review. First, he states that the administrative law
judge’s (ALJ) residual functional capacity (RFC) determination is not supported by substantial
evidence. Pendergrass also states that the hypothetical question posed to the vocational expert
did not capture the concrete consequences of his impairment. The Commissioner asserts that the
ALJ’s decision is supported by substantial evidence in the record as a whole and should be
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
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.
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 RFC to perform past relevant work. 20 C.F.R.
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.
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
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
(3) The medical evidence given by the claimant’s treating
(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
(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).
Pendergrass asserts that his onset date of disability is January 31, 2009. His last date of
eligibility for disability insurance benefits was December 31, 2009. Because Pendergrass’ last
date insured is December 31, 2009, Pendergrass has the burden to show that he had a disabling
impairment before his insured status expired. See Barnett v. Shalala, 996 F.2d 1221 (8th Cir.
1993) (citing Basinger v. Heckler, 725 F.2d 1166, 1168 (8th Cir. 1984)). “When an individual is
no longer insured for Title II disability purposes, [the Court] will only consider [his] medical
condition as of the date [he] was last insured.” Davidson v. Astrue, 501 F.3d 987, 989 (8th Cir.
2007) “Evidence from outside the insured period can be used in helping to elucidate a medical
condition during the time for which benefits may be rewarded.” Cox v. Barnhart, 471 F.3d 902,
907 (8th Cir. 2006). But, the evidence from outside the period cannot serve as the only support
for the disability claim. Id. The ALJ found that Pendergrass had the severe impairment of
seizure disorder. (Tr. 15.)
The medical records relevant to this discussion are summarized as follows.
December 16, 2008, Pendergrass arrived at the emergency room and reported that he
experienced a seizure for the first time in his life. (Tr. 392.) A physical examination showed a
bruised and slightly swollen tongue and flushed face. (Tr. 393.) A posterioranterior and lateral
chest x-ray showed hyperinflation consistent with obstructive pulmonary disease. (Tr. 396, 434-
A CT scan of the brain without contrast showed bifrontal encephalomalcia 1, more
pronounced on the left corresponding with old hemorrhagic contusions present in 1997 with no
acute intraparenchymal abnormalities and minor ethmoid sinusitis. (Tr. 396, 438-39.) The
treating physician diagnosed Pendergrass with new onset seizure and acute chronic alcohol
abuse. (Tr. 394.) The treating physician also noted that Pendergrass’ son stated that Pendergrass
fell the previous Friday and it happens all the time when he is “drank.” (Tr. 394.) The treating
physician opined that the seizure was most probably from alcohol. (Tr. 394.)
Pendergrass visited his primary care physician Dr. Shawn Brunk the next day and his
examination was normal.
encephalitis 2 and encephalomyelitis 3.
Dr. Brunk diagnosed him with seizures and
Dr. Brunk referred Pendergrass to a
neurologist. (Tr. 445.) A brain MRI with and without contrast indicated encephalomalacia with
underlying gliosis 4 involving both frontal lobes, scattered chronic small vessel ischemic white
matter change, and mild bilateral anterior ethmoid sinus disease. (Tr. 430, 433.) A brain MRA5
showed no significant abnormalities of the brain. (Tr. 431-32.)
A few days later, Pendergrass visited Dr. Duane Turpin, a neurologist. (Tr. 418-19.)
Pendergrass told Dr. Turpin that he had a head injury in 1997 from a car accident. He also
reported a “blackout” that resulted in a visit to the emergency room. (Tr. 418.) Pendergrass
reported difficulty with compliance with blood pressure medication and that he normally drinks
one or two drinks occasionally and between six to twelve beers on the weekends. (Tr. 418.) Dr.
Encephalomalcia is “softening of the brain.” Dorland’s Illustrated Medical Dictionary 613 (37th ed. 2012).
Encephalitis is “inflammation of the brain.” Dorland’s Illustrated Medical Dictionary 612 (37th ed. 2012)
Encephalogmyelitis is “inflammation involving both the brain and spinal cord.” Dorland’s Illustrated Medical
Dictionary 613 (37th ed. 2012)
Gliosis is an overgrowth of the astrocytes in an area of damage in the brain or spinal cord. Stedman’s Medical
Dictionary 750 (27th ed. 2000).
“Magnetic resonance angiography (MRA) is a noninvasive procedure for viewing possible blockages in arteries.”
KATHLEEN DESKA PAGANA & TIMOTHY J. PAGANA, MOSBY’S MANUAL OF DIAGNOSTIC AND LABORATORY TESTS
1107 (5th ed. 2014).
Turpin diagnosed Pendergrass with seizure disorder due to ten year cerebral contusion and
prescribed Keppra XR. (Tr. 419.) Dr. Turpin instructed Pendergrass not to drive for six months
and to follow up with Dr. Turpin in a few weeks to do blood work and assess medication use.
An electroencephalogram 6 was abnormal due to left frontal sharp activity that indicated
underlying area of cortical irritability that correlates with partial seizures with or without
secondary generalization. (Tr. 420.)
Pendergrass next visited Dr. Turpin in February 2010. (Tr. 417.) During the visit, Dr.
Turpin noted that Pendergrass never followed up from his December 2008 visit. (Tr. 417.)
Pendergrass reported that he had had three seizures within the past year and he was currently
working part time as a heavy equipment truck driver. (Tr. 417.) Dr. Turpin reported that
Pendergrass had been advised to seek disability and he agreed with that suggestion. (Tr. 417.)
Dr. Turpin increased Pendergrass’ dosage of Keppra. (Tr. 417.) During a May 18, 2010 visit
with Dr. Turpin, Pendergrass reported that he had not experienced a seizure since the increase in
his medication. (Tr. 416.) In late November 2010, Pendergrass reported to Dr. Turpin that he
had a seizure 3 weeks before the visit. (Tr. 489.) Dr. Turpin instructed Pendergrass to refrain
from driving and drinking. (Tr. 489.) Pendergrass visited Dr. Turpin in May 2011 and reported
that he had a small seizure two weeks before the visit. (Tr. 488.) Dr. Turpin requested an EEG,
which was normal. (Tr. 490.)
On November 23, 2010, Dr. Turpin completed a RFC Questionnaire regarding
Pendergrass. (Tr. 482-86.) Dr. Turpin indicated that he had seen Pendergrass for two years
every six months and diagnosed him with seizure disorder and past history of head injury. (Tr.
482.) Dr. Turpin opined that the seizures were generalized with a loss of consciousness and
An electroencephalogram (EEG) is the system for recording the electric potentials of the brain derived from
electrodes attached to the scalp. Stedman’s Medical Dictionary 575 (27th ed. 2000).
occurred four times per year. (Tr. 482.) Dr. Turpin indicated that after seizures Pendergrass
experienced confusion and irritability that lasted one day. (Tr. 483.) He wrote that the seizures
were a “significant disability.” (Tr. 483.) Dr. Turpin opined that Pendergrass was incapable of
even low stress jobs and he had associated mental problems of memory problems, short attention
span, and irritability. (Tr. 485.) He opined that Pendergrass would likely be absent from work
about one day a month or less. (Tr. 485.) Dr. Turpin did not respond to the questions on the
questionnaire that requested “the earliest date that the description and symptoms and limitations
in the questionnaire applies” or whether Pendergrass “suffers from ethanol related seizures or
ethanol/other drug abuse.” (Tr. 484.)
In 2009, Pendergrass visited Dr. Brunk twice for a cold and sore throat. (Tr. 446-47.) In
November 2009, Pendergrass reported to Dr. Brunk that he had “blackouts,” most recently the
Friday before and woke up with blood in his mouth. (Tr. 448.) Pendergrass told Dr. Brunk that
he had not been taking his medication for three months. (Tr. 448.) Between January and July
2010, Pendergrass visited Dr. Brunk several times for injections due to bursitis of his elbow. (Tr.
450-59, 497-98, 501-502, 505-506.) During his February 2010 visit with Dr. Brunk, Pendergrass
reported that he had had another seizure and did not follow-up with the neurologist, because he
had to get back to work. (Tr. 499.) Dr. Brunk advised him to cease using alcohol and see the
neurologist. (Tr. 500.) Dr. Brunk also advised him not to drive due to seizure activity. (Tr.
500.) Pendergrass had several visits with Dr. Brunk from 2011 through 2013 for osteoarthritis in
the knee. (Tr. 507-508, 514-15, 520-31.)
In 2013, Pendergrass visited Dr. Glenn Sherrod, a neurologist. (Tr. 517-19.) At a
February 2013 visit, Pendergrass reported that he had not had a seizure since December 2012 and
he was doing well. (Tr. 519.) During a May 2013 visit, Pendergrass complained of knee,
shoulder, and back pain, and arthritis. (Tr. 518.) Pendergrass reported that his last grand mal
seizure was December 2012, but he had had smaller ones. (Tr. 518.) An EEG taken on June 6,
2013 was normal. (Tr. 517.)
First, the Court will address whether the RFC is supported by substantial evidence in the
record. 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. 7 SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996).
The ALJ found that Pendergrass had the RFC to perform medium work through December 31,
2009, with the following limitations: (1) occasionally climb stairs and ramps; (2) never climb
ladders and scaffolds; (3) frequently balance, stoop, kneel, crouch, and crawl; (4) avoid
concentrated exposure to hazards such as unprotected heights and moving mechanical parts; and
(5) avoid exposure to dusts, odors, fumes, and other pulmonary irritants. (Tr. 16.)
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.
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.
§ 404.1527(b); see also Heino, 578 F.3d at 879. “A disability claimant has the burden to
establish her RFC.” Eichelberger, 390 F.3d at 591 (citing Masterson, 363 F.3d at 737).
Pendergrass contends that the ALJ’s RFC determination is not supported by substantial
evidence, because the ALJ improperly evaluated Dr. Turpin’s medical opinion and improperly
considered his credibility, and failed to find that his knee and back problems were significant
Knee and back problems as significant impairments
First, Pendergrass contends that the ALJ should have found that his “significant” knee
and back problems were medically determinable impairments. After the ALJ has determined
that a claimant is not engaged in substantial gainful activity, the ALJ then determines whether
the claimant has a severe impairment or combination of impairments that has or is expected to
last twelve months or will result in death. 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(i)-(ii). A
physical or mental impairment must be established by medical evidence consisting of signs,
symptoms, and laboratory findings, not only by the claimant’s statement of symptoms. 20
C.F.R. § 404.1508. To be considered severe, an impairment must significantly limit a claimant’s
ability to do basic work activities. See 20 C.F.R § 404.1520(c). “Step two [of the five-step]
evaluation states that a claimant is not disabled if his impairments are not ‘severe.” Kirby v.
Astrue, 500 F.3d 705, 707 (8th Cir. 2007) (citing Simmons v. Massanari, 264 F.3d 751, 754 (8th
Cir. 2001). “An impairment is not severe if it amounts only to a slight abnormality that would
not significantly limit the claimant’s physical or mental ability to do basic work activities.” Id. at
707. “If the impairment would have no more than a minimal effect on the claimant's ability to
work, then it does not satisfy the requirement of step two.” Id. (citing Page v. Astrue, 484 F.3d
“It is the claimant’s burden to establish that his impairment or combination of
impairments are severe. Kirby, 500 F.3d at 707 (citing Mittlestedt v. Apfel, 204 F.3d 847, 852
(8th Cir. 2000)). “Severity is not an onerous requirement for the claimant to meet, . . . but it is
also not a toothless standard.” Kirby, 500 F.3d at 708.
In this case, the ALJ stated he did not find Pendergrass’ testimony regarding leg and back
problems credible because there is no evidence that Pendergrass was treated for back or leg
problems in 2009 or that he had a medically determined severe back or leg impairment from
January 2009 through December 2009. (Tr. 17.) Pendergrass states that there was evidence in
the record that he had a right knee injection in 2007 and a finding of osteoarthritis in the right
knee. In September 2010, a consultative examination and radiographs indicated osteoarthritis in
Pendegrass’ left knee and spondylolisthesis at L5 and S1 of the lumbar spine. (Tr. 465-473.)
Based on the Court’s careful review of the evidence, the ALJ did not err in finding that
Pendergrass’ knee and back problems were severe impairments during the relevant time period.
The Court agrees with the ALJ that Pendergrass has failed to meet his burden to show that these
were severe impairments during the relevant time period. The record indicates that on December
21, 2007, Pendergrass visited Dr. Leonard Lucas to receive an ejection in his right knee. (Tr.
440.) Dr. Lucas also noted that Pendergrass was doing better and had changed some of his
activities. (Tr. 440.) There is no evidence of any treatment during the relevant time period.
Pendergrass may have had osteoarthritis during the relevant time period, but he has no evidence
to indicate it was a severe impairment during that time. The mere existence of a medically
determinable impairment does not mean that it is severe or that it supports a finding of disability.
Stormo v. Barnhart, 377 F.3d 801, 808 (8th Cir. 2004). Evidence outside of the time period also
did not provide support that these were severe impairments during the relevant time period.
Dr. Turpin’s Medical Opinion
Next, the Court will address whether the ALJ properly evaluated Dr. Turpin’s medical
opinion. All medical opinions, whether by treating or consultative examiners are weighed based
on (1) whether the provider examined the claimant; (2) whether the provider is a treating source;
(3) length of treatment relationship and frequency of examination, including nature and extent of
the treatment relationship; (4) supportability of opinion with medical signs, laboratory findings,
and explanation; (5) consistency with the record as a whole; (6) specialization; and (7) other
factors which tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c). Generally, a
treating physician’s opinion is given controlling weight, but is not inherently entitled to it.
Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006). A treating physician’s opinion “does not
automatically control or obviate the need to evaluate the record as a whole.” Leckenby v. Astrue,
487 F.3d 626, 632 (8th Cir. 2007). A treating physician’s opinion will be given controlling
weight if the 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. 20 C.F.R. § 404.1527(c); SSR 96-2p; see also Hacker, 459 F.3d at 937. “Whether the
ALJ grants a treating physician’s opinion substantial or little weight, the regulations provide that
the ALJ must ‘always give good reasons’ for the particular weight given to a treating physician’s
evaluation.” Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000).
In this case, the ALJ discounted Dr. Turpin’s opinion that Pendergrass could not do any
work, but agreed that Pendergrass could not return to his past relevant work driving heavy
machinery. (Tr. 17-18.) The ALJ also noted that ultimate determination of disability is reserved
for the Commissioner. (Tr. 18.) Upon a review of Dr. Turpin’s medical opinion evidence and
the record as a whole, the Court finds that the ALJ did not err in discounting Dr. Turpin’s
opinion. Dr. Turpin’s opinion was completed in November 2010 and fails to indicate whether it
covered the relevant time period. (Tr. 486.) Assuming that his opinion covered the relevant time
period, the RFC determination is consistent with Dr. Turpin’s opinion by limiting Pendergrass to
no concentrated exposure to hazards such as unprotected heights and moving mechanical parts.
Dr. Turpin also stated that Pendergrass was compliant with medication. (Tr. 484.) Treatment
records indicate that Pendergrass told Dr. Brunk in November 2009 that he hadn’t taken his
medication for three months and he told Dr. Turpin in February 2010 that he had not taken his
medication for a couple of months.
(Tr. 417, 448-49, 495-96.)
Pendergrass received no
treatment for his seizures in 2009 until his November 2009 visit with Dr. Brunk. (Tr. 448-49,
495-96.) The treatment records and Dr. Turpin’s opinion may indicate that Pendergrass could
not return to his past relevant work, but in light of Pendergrass’ activities of daily living,
including continuing to drive during the relevant time period (Tr. 96-97), these findings do not
support additional limitations in the RFC determination or a finding of disability.
Finally, Pendergrass states that the ALJ improperly assessed his credibility.
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
(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
court, the ALJ’s credibility assessment must be based on substantial evidence. Rautio v. Bowen,
862 F.2d 176, 179 (8th Cir. 1988).
A claimant’s statements “may be less credible if the level or frequency of treatment is
inconsistent with the level of complaints, or if the medical reports or records show that the
individual is not following the treatment prescribed and there are no good reasons for this
failure.” SSR 96-7p, 1996 WL 374186 at *7 (July 2, 1996).
The ALJ “must not draw any
inferences about an individual’s symptoms and their functional effects from a failure to seek or
pursue regular medical treatment without first considering any explanations that the individual
may provide, or other information in the case record, that may explain infrequent or irregular
medical visits or failure to seek medical treatment.” Id. “The adjudicator may need to recontact
the individual or question the individual at the administrative hearing in order to determine
whether there are good reasons the individual does not seek medical treatment or does not pursue
treatment in a consistent manner.” Id.
In this case the ALJ found that Pendergrass’ credibility was lessened, because of vague
testimony regarding the frequency of his seizures, failure to take medication and follow
treatment directives, lack of treatment during the relevant time period, and activities of daily
living that were inconsistent with a totally disabling seizure disorder. (Tr. 16-18.)
The ALJ considered several factors in evaluating Pendergrass’ credibility. All of the
factors considered by the ALJ can be considered when assessing credibility in a social security
disability case. See Moore v. Astrue, 572 F.3d 520, 524-25 (8th Cir. 2009) (appropriate for ALJ
to consider conservative or minimal treatment in assessing credibility); Juszczyk v. Astrue, 542
F.3d 626, 632 (8th Cir. 2008) (If an ALJ explicitly discredits a claimant’s testimony and gives
good reasons for doing so, deference is given to the ALJ’s credibility determination); Goff v.
Barnhart, 421 F.3d 785, 792 (8th Cir. 2005) (ALJ can disbelieve subjective complaints if there
are inconsistencies in the evidence as a whole and lack of corroborating evidence is just one of
the factors the ALJ considers); Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Circuit 2005)
(significant daily activities may be inconsistent with claims of disabling pain). A review of the
entire record demonstrates that ALJ did not rely solely upon any one of the factors in the
Considering the combination of the factors relied upon by the ALJ,
substantial evidence in the record supports the ALJ’s credibility findings.
Based on the
foregoing, the Court finds that the ALJ’s credibility determination was supported by substantial
evidence in the record as a whole.
Vocational Expert Testimony
Finally, Pendergrass states that the hypothetical question to the vocational expert did not
capture the concrete consequences of his impairment and therefore, cannot constitute substantial
evidence on which the ALJ can rely in support of the disability determination. “Testimony from
a vocational expert constitutes substantial evidence only when based on a properly phrased
hypothetical question.” Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996). A “hypothetical
question posed to a vocational expert must capture the concrete consequences of claimant’s
deficiencies.” Pickney, 96 F.3d at 297. “[T]he ALJ’s hypothetical question must include the
impairments that the ALJ finds are substantially supported by the record as a whole.” Id. at 296.
“However, the hypothetical need only include those impairments which the ALJ accepts as true.”
Grissom v. Barnhart, 416 F.3d 834, 836 (8th Cir. 2005).
As previously stated, the Court found that the ALJ’s RFC determination was supported
by substantial evidence in the record as a whole. The hypothetical question included all of
Pendergrass’ limitations the ALJ found to be credible. Therefore, the hypothetical question to
the vocational expert was proper and the vocational expert testimony constituted substantial
evidence supporting the Commissioner’s denial of benefits. See LaCroix v. Barnhart, 465 F.3d
881, 889 (8th Cir. 2006).
A review of the record as a whole demonstrates that Pendergrass had some restrictions in
his functioning and ability to perform work related activities during the relevant time period,
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.
IT IS HEREBY ORDERED that the relief requested in Plaintiff’s Complaint and Brief
in Support of Complaint is DENIED. [Docs. 1, 17.]
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 10th day of August, 2016.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
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