Smith v. Colvin
MEMORANDUM OPINION: IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the Commissioner of Social Security is AFFIRMED.. Signed by Magistrate Judge Shirley Padmore Mensah on 7/31/17. (LGK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NANCY A. BERRYHILL 1,
Acting Commissioner of Social Security,
Case No. 4:16-CV-515-SPM
This is an action under 42 U.S.C. § 405(g) for judicial review of the final decision of
Defendant Nancy A. Berryhil, the Acting Commissioner of Social Security, denying the
application of Plaintiff Andrew Smith (“Plaintiff”) for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. (the “Act”). The parties
consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c).
(Doc. 8). Because I find the decision denying benefits was supported by substantial evidence, I
will affirm the Commissioner’s denial of Plaintiff’s application.
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be
taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
A. Plaintiff’s Testimony Before the ALJ
Plaintiff was thirty-five years old when he applied for DIB. (Tr. 31, 55). He has an
eleventh grade education and previous work experience as a repair technician, carpenter, and
assembly line worker. (Tr. 31-32). He testified that he is unable to work because of constant
pain, occurring ninety percent in his lower back, and ten percent in his neck. (Tr. 32). Plaintiff
has sought treatment for his pain including injections, nerve blocks, epidurals, and other
procedures, and he had a TENS unit implanted on his spine for a one-week trial. (Tr. 32-33). His
doctors have not recommended surgery to remove his disc because they say Plaintiff’s condition
is “not bad enough that we want to remove the disc.” (Tr. 33).
Plaintiff testified that his daily activities include getting his son ready for school and
walking him about 100 yards to the bus stop, and doing household chores such as folding
laundry and loading the dishwasher. (Tr. 35-38). He will sometimes ride his son’s bicycle home
from the bus stop. (Tr. 36). He can sit for about thirty minutes and can stand for about forty-five
minutes to one hour, and he frequently changes positions. (Tr. 36-37). Plaintiff can drive a car
for about thirty minutes before needing to stop to change positions. (Tr. 36). He goes grocery
shopping, but his girlfriend lifts the heavy items. (Tr. 38). Plaintiff can lift eight to ten pounds a
few times if he does not twist while lifting. (Tr. 41).
On bad days, Plaintiff can hardly move, twist or bend, and he lies down most of the day.
(Tr. 34). He experiences trouble sleeping, stating he gets three or four hours of sleep per night.
(Tr. 34). He takes Trazadone as a sleep aid, and he takes two naps of forty-five minutes each
during the day. (Tr. 35). Plaintiff takes Gabapentin and Percocet for pain, and also places ice
packs on his back for fifteen to twenty minutes, three to four times per day for pain relief. (Tr.
On a scale from one to ten, Plaintiff experiences pain on a constant basis at a level of five
to seven out of ten. (Tr. 39). Treating doctors have not recommended any type of assistive
devices for walking, such as a cane or a walker, nor has Plaintiff tried any such device. (Tr. 40).
Plaintiff tried going to physical therapy, but his doctor terminated it because it seemed to make
his condition worse. (Tr. 40).
B. Plaintiff’s Medical Records
Plaintiff’s medical records show that he has been receiving treatment for back pain since
at least 2010, including a surgery in May of that year to relieve nerve compression at L4-L5. (Tr.
207). Plaintiff was referred to Dr. Suresh Krishnan for pain management and visited him
regularly beginning in February of 2012. (Tr. 231). Dr. Krishnan’s notes during the alleged
disability period indicate that Plaintiff regularly complained to Dr. Krishnan of moderate to
severe pain in his back and neck, often with radiation to the arms and legs (Tr. 221-22, 225-26,
299-300, 336-38, 340-41, 344, 347-48, 351-52,); was assessed as having conditions including
back pain likely due to degenerative disc disease, post-laminectomy syndrome lumbar region,
and radiculopathy likely related to bulging disk (Tr. 225, 229, 302, 339, 343, 346, 350, 354); and
was treated with medications including Percocet, Neurontin, and tramadol. (Tr. 225, 230, 302,
339, 343-44, 346, 350, 354). Plaintiff’s findings on objective examination were mixed, with
regular findings of positive straight leg raise tests and decreased range of motion in the lumbar
and cervical spine, but also regular findings of normal gait, normal sensation, normal reflexes,
normal motor strength, ability to heel and toe walk, and no atrophy. (Tr. 223-24, 228-29, 302,
338, 342-43, 345-46, 349-50, 353).
Plaintiff’s treating physician often described Plaintiff’s pain as “disabling” (Tr. 239, 247,
256, 265, 269, 278, 283, 287), but he did not offer any opinions about Plaintiff’s functional
limitations. The record contains an opinion from a non-examining state agency physician, Q.
Michael Ditmore, M.D., who reviewed Plaintiff’s records in April 2013. (Tr. 50-54). Dr.
Ditmore found that Plaintiff had a severe impairment of “disorders of back—discogenic and
degenerative” but did not meet Listing 1.04A. (Tr. 50). He found Plaintiff’s reported symptoms
“partially credible” and found that Plaintiff could lift and/or carry 20 pounds occasionally and 10
pounds frequently; could sit for a total of about six hours in an eight-hour workday; could stand
and/or walk for about six hours in an eight-hour workday; could climb ramps, stairs, ladders,
ropes, and scaffolds only occasionally; could stoop occasionally; could balance, crouch, and
crawl frequently; and had no manipulative, visual, communicative, or environmental limitations.
On March 4, 2013, Plaintiff applied for DIB, alleging that he had been unable to work
since January 10, 2013 due to disorders of the back. (Tr. 55). His application was initially
denied. (Tr. 58). On May 3, 2013 Plaintiff filed a Request for Hearing by Administrative Law
Judge (ALJ) (Tr. 65-66). After a hearing, the ALJ issued an unfavorable decision on October 24,
2014. (Tr. 11-18). Plaintiff filed a Request for Review of Hearing Decision with the Social
Security Administration’s Appeals Council, and the Appeals Council denied the request for
review on February 19, 2016. (Tr. 1-5). Plaintiff has exhausted all administrative remedies, and
the decision of the ALJ stands as the final decision of the Commissioner of the Social Security
STANDARD FOR DETERMINING DISABILITY UNDER THE ACT
To be eligible for benefits under the Social Security Act, a claimant must prove he or she
is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Sec’y of Health
& Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines as disabled
a person who is unable “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 twelve months.” 42
U.S.C. §§ 423(d)(1)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The
impairment must be “of such severity that [the claimant] 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, regardless of whether such
work exists in the immediate area in which he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work.” 42 U.S.C. § 423(d)(2)(A).
To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. 20 C.F.R. § 404.1520(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th
Cir. 2011) (discussing the five-step process). At Step One, the Commissioner determines
whether the claimant is currently engaging in “substantial gainful activity”; if so, then he is not
disabled. 20 C.F.R. § 404.1520(a)(4)(i); McCoy, 648 F.3d at 611. At Step Two, the
Commissioner determines whether the claimant has a severe impairment, which is “any
impairment or combination of impairments which significantly limits [the claimant’s] physical or
mental ability to do basic work activities”; if the claimant does not have a severe impairment, he
is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c); McCoy, 648 F.3d at 611. At Step
Three, the Commissioner evaluates whether the claimant’s impairment meets or equals one of
the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “listings”). 20 C.F.R. §
404.1520(a)(4)(iii); McCoy, 648 F.3d at 611. If the claimant has such an impairment, the
Commissioner will find the claimant disabled; if not, the Commissioner proceeds with the rest of
the five-step process. 20 C.F.R. § 404.1520(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the Commissioner must assess the claimant’s “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his or her] limitations.” Moore
v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20
C.F.R. § 404.1520(e). At Step Four, the Commissioner determines whether the claimant can
return to his past relevant work, by comparing the claimant’s RFC with the physical and mental
demands of the claimant’s past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f);
McCoy, 648 F.3d at 611. If the claimant can perform his past relevant work, he is not disabled; if
the claimant cannot, the analysis proceeds to the next step. Id. At Step Five, the Commissioner
considers the claimant’s RFC, age, education, and work experience to determine whether the
claimant can make an adjustment to other work in the national economy; if the claimant cannot
make an adjustment to other work, the claimant will be found disabled. 20 C.F.R.
§ 404.1520(a)(4)(v); McCoy, 648 F.3d at 611.
Through Step Four, the burden remains with the claimant to prove that he is disabled.
Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that,
given the claimant’s RFC, age, education, and work experience, there are a significant number of
other jobs in the national economy that the claimant can perform. Id.; Brock v. Astrue, 674 F.3d
1062, 1064 (8th Cir. 2012).
THE ALJ’S DECISION
Applying the foregoing five-step analysis, the ALJ here found that Plaintiff has not
engaged in substantial gainful activity since January 10, 2013, the alleged onset date; that
Plaintiff had the severe impairments of “disorder of the neck” and “disorder of the back”; and
that Plaintiff did not have an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1. (Tr. 13). The ALJ found that Plaintiff had the RFC to perform sedentary work as defined in 20
C.F.R. § 404.1567(a), except that Plaintiff required a sit/stand option allowing him to sit or stand
alternatively at will, provided that he would not be off-task more than ten percent of the
workday; that Plaintiff could occasionally climb ramps and stairs, but could never climb ladders,
ropes or scaffolds; that Plaintiff could occasionally stoop, kneel, crouch, and crawl; that Plaintiff
must avoid all use of hazardous machinery and all exposure to unprotected heights; and that
Plaintiff was limited to simple work, defined in the Dictionary of Occupational Titles as specific
vocational preparation levels one and two, routine and repetitive tasks. (Tr. 14). The ALJ
considered the physical and mental demands of Plaintiff’s past relevant work, Plaintiff’s RFC,
and the testimony of the vocational expert and concluded Plaintiff was unable to perform any of
his past relevant work. (Tr. 17). The ALJ relied on testimony of the vocational expert to find
that, considering Plaintiff’s age, education, work experience, and RFC, there were jobs in the
national economy that Plaintiff could perform, such as dowel inspector, egg processor, and
patcher. (Tr. 17-18).
Plaintiff challenges the ALJ’s decision on three grounds: (1) that the ALJ erred at Step
Three by finding that Plaintiff’s condition did not meet or equal Listing 1.04A; (2) that the ALJ
did not consider all of the required factors for evaluating the credibility of Plaintiff’s subjective
complaints; and (3) that a finding of disability is warranted because the unskilled sedentary
occupational base is significantly eroded.
A. Standard for Judicial Review
The decision of the Commissioner must be affirmed if it complies with the relevant legal
requirements and is supported by substantial evidence in the record as a whole. See 42 U.S.C.
§§ 405(g); 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275
F.3d 722, 724 (8th Cir. 2002); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009).
“Substantial evidence ‘is less than a preponderance, but enough that a reasonable mind might
accept as adequate to support a conclusion.’” Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir.
2012) (quoting Moore, 572 F.3d at 522). In determining whether substantial evidence supports
the Commissioner’s decision, the court considers both evidence that supports that decision and
evidence that detracts from that decision. Id. However, the court “‘do[es] not reweigh the
evidence presented to the ALJ, and [it] defer[s] to the ALJ’s determinations regarding the
credibility of testimony, as long as those determinations are supported by good reasons and
substantial evidence.’” Id. at 1064 (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.
2006)). “‘If, after reviewing the record, the court finds it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the ALJ’s findings, the court
must affirm the ALJ’s decision.’” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting
Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)).
B. The ALJ’s Step Three Finding is Supported by Substantial Evidence.
Plaintiff’s first argument is that the ALJ erred by finding that Plaintiff’s condition did not
meet or equal one of the listed impairments, particularly Listing 1.04A. The Court disagrees.
“The burden of proof is on the plaintiff to establish that his or her impairment meets or
equals a listing.” Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004) (citing Sullivan v.
Zebley, 493 U.S. 521, 530-31 (1990)); accord Jones v. Astrue, No. 4:08CV01472FRB, 2010 WL
883658, at *8 (E.D. Mo. Mar. 5, 2010). “To meet a listing, an impairment must meet all of the
listing’s specified criteria.” Johnson, 390 F.3d at 1070 (citing Zebley, 493 U.S. at 530). “Medical
equivalence must be based on medical findings.” Id. (quoting 20 C.F.R. § 416.926(b)(2003)).
Plaintiff argues that his impairments meet or equal Listing 1.04A. The preamble of
Listing 1.04A requires a disorder of the spine resulting in compromise of a nerve root or the
spinal cord. 20 C.F.R. Part 404, Subpart P, Appendix 1. Paragraph A lists the additional
Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test
(sitting and supine).
The ALJ’s finding that Plaintiff did not meet his burden of showing that he meets or
equals all of these criteria is supported by the record. As Defendant points out, even assuming
that Plaintiff meets some of the criteria, he cannot show “motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by sensory or reflex loss.” To the contrary,
Dr. Krishnan’s notes from Plaintiff’s visits after the alleged onset date indicate that Plaintiff
denied muscle weakness (Tr. 223, 228, 301, 338, 342, 345, 349, 353) and that on examination,
Plaintiff had no atrophy and had normal reflexes and sensation. (Tr. 224, 229, 302, 338, 342,
346, 349-50, 353). In addition, nonexamining state agency physician Dr. Ditmore considered
Listing 1.04A, but did not find that Plaintiff met or equaled that listing. (Tr. 50-51).
Significantly, in his brief, Plaintiff does not cite any evidence demonstrating that he meets or
equals the criteria in Listing 1.04A. Based on the evidence discussed above, and the absence of
medical evidence showing that Plaintiff did meet or equal this listing, the Court finds that the
ALJ’s Step Three determination is supported by substantial evidence.
C. The ALJ Conducted a Proper Credibility Analysis, Supported by
Plaintiff’s second argument is that the ALJ failed to consider all of the relevant factors
for evaluating subjective complaints. 2 When evaluating the credibility of a plaintiff’s subjective
complaints, the ALJ must consider several factors: “(1) the claimant’s daily activities; (2) the
duration, intensity, and frequency of pain; (3) the precipitating and aggravating factors; (4) the
dosage, effectiveness, and side effects of medication; (5) any functional restrictions; (6) the
claimant’s work history; and (7) the absence of objective medical evidence to support the
claimant’s complaints.” Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009) (citing Finch v.
Astrue, 547 F.3d 933, 935 (8th Cir. 2008) and Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984)). “An ALJ who rejects subjective complaints must make an express credibility
determination explaining the reason for discrediting the complaints.” Moore, 572 F.3d at 524
(quoting Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000)). However, the ALJ need not
explicitly discuss each factor. Id. (citing Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005)). It
is sufficient if the ALJ “‘acknowledges and considers the factors before discounting a claimant’s
subjective complaints.’” Id. The ALJ may not discount allegations of disabling pain solely
because they are not fully supported by the medical evidence, but such allegations may be found
Plaintiff does not set forth any specific deficiencies in the ALJ’s credibility analysis; his
argument consists entirely of a list of the relevant factors and a statement that the ALJ failed to
consider them all.
not credible if they are inconsistent with the record as a whole. Ellis v. Barnhart, 392 F.3d 988,
996 (8th Cir. 2005).
After review of the record, the Court finds that the ALJ conducted a proper credibility
analysis. The ALJ set out the relevant credibility factors in his opinion and considered and
discussed several in detail. (Tr. 14-16). First, the ALJ reasonably found that Plaintiff “described
activities of daily living that are not limited to the extent one would expect given the complaints
of disabling symptoms and limitations.” (Tr. 15). Specifically, the ALJ noted that Plaintiff helps
with loading the dishwasher and doing laundry; helps his son get ready for school and walks him
to his bus stop, a distance of 100 yards; can walk for 20 minutes before needing to rest; goes
shopping once a month for about 45 minutes; and occasionally rides a bicycle. (Tr. 15).
The Eighth Circuit has recognized that its cases “send mixed signals about the
significance of a claimant’s daily activities in evaluating claims of disabling pain.” Clevenger v.
Soc. Sec. Admin., 567 F.3d 971, 976 (8th Cir. 2009); compare, e.g., Medhaug v. Astrue, 578 F.3d
805, 817 (8th Cir. 2009) (“[A]cts such as cooking, vacuuming, washing dishes, doing laundry,
shopping, driving, and walking, are inconsistent with subjective complaints of disabling pain.”)
with Reed v. Barnhart, 399 F.3d 917, 923-24 (8th Cir. 2005) (“[T]his court has repeatedly
observed that the ability to do activities such as light housework and visiting with friends
provides little or no support for the finding that a claimant can perform full-time competitive
work.”) (quotation marks omitted). However, Eighth Circuit cases generally suggest that it is
proper for the ALJ to consider such daily activities in conjunction with other factors affecting the
credibility of a Plaintiff’s complaints. See, e.g., Halverson v. Astrue, 600 F.3d 922, 932-33 (8th
Cir. 2010) (holding that the ALJ properly considered daily activities in conjunction with other
inconsistencies in the record in assessing the credibility of the plaintiff’s complaints); Wagner v.
Astrue, 499 F.3d 842, 852-53 (8th Cir. 2007) (finding a claimant’s accounts of “extensive daily
activities, such as fixing meals, doing housework, shopping for groceries, and visiting friends”
supported the ALJ’s conclusion that his complaints were not fully credible). Here, the record
indicates that the ALJ properly considered Plaintiff’s daily activities in conjunction with other
factors in the record in assessing the credibility of Plaintiff’s complaints.
Second, the ALJ reasonably found that Plaintiff’s subjective complaints were “out of
proportion to the objective medical evidence.” (Tr. 15). The ALJ correctly noted that physical
examinations frequently showed that Plaintiff had normal gait; was able to heel and toe walk;
had normal or nearly normal reflexes and sensation; and had intact coordination, and he found
those normal findings undermined Plaintiff’s claim that he could not perform even a limited
range of sedentary work. (Tr. 15, 224, 229, 302, 353, 342-43, 338, 346, 349-50). Although the
ALJ may not discount a claimant’s subjective complaints solely based on a lack of objective
medical evidence, it is proper for the ALJ to consider unremarkable or mild objective findings as
a factor in the credibility analysis. See Halverson, 600 F.3d at 931-32 (“Another factor to be
considered is the absence of objective medical evidence to support the complaints, although the
ALJ may not discount a claimant’s subjective complaints solely because they are unsupported by
objective medical evidence.”); Goff, 421 F.3d at 792 (holding that it was proper for the ALJ to
consider unremarkable or mild objective medical findings as one factor in assessing credibility of
subjective complaints). It was reasonable for the ALJ to consider these findings in determining
that Plaintiff’s complaints were not fully credible.
Third, the ALJ reasonably considered the absence of functional restrictions from
Plaintiff’s physicians. (Tr. 15-16). As the ALJ noted, although Plaintiff’s treating physician
stated in a conclusory manner that Plaintiff’s pain was “disabling,” he did not set forth any
specific functional limitations related to Plaintiff’s pain or impairments. (Tr. 16). This was a
proper consideration. See Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (noting that the
fact that no doctor had placed limitations on the plaintiff was a proper consideration in the ALJ’s
credibility analysis); Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004) (upholding
ALJ’s credibility analysis where the ALJ paid particular attention to the fact that the plaintiff’s
physician had not imposed work-related restrictions); Hensley v. Barnhart, 352 F.3d 353, 357
(8th Cir. 2003) (“[N]o functional restrictions were placed on Hensley’s activities, a fact that . . .
is inconsistent with a claim of disability.”).
Fourth, the ALJ reasonably considered his own personal observations at the hearing,
noting that Plaintiff was able to participate in the hearing fully, including responding to questions
appropriately, without being distracted or demonstrating any overt pain behavior. (Tr. 15). The
Eighth Circuit has held that it is “completely proper” for an ALJ to consider his own personal
observations of a claimant during a hearing in making a credibility determination. Johnson v.
Apfel, 240 F.3d 1145, 1147-48 (8th Cir. 2001). See also Lamp v. Astrue, 531 F.3d 629, 632 (8th
Cir. 2008) (“While the ALJ’s observations cannot be the sole basis of his decision, it is not an
error to include his observations as one of several factors.”).
Fifth, the ALJ reasonably considered the fact that Plaintiff received unemployment
benefits after his alleged onset date. The Eighth Circuit has held that although it is not
conclusive, applying for unemployment benefits adversely affects the credibility of complaints of
disabling impairments, “because an unemployment applicant ‘must hold himself out as available,
willing and able to work.’” Smith v. Colvin, 756 F.3d 621, 625 (8th Cir. 2014) (quoting Jernigan
v. Sullivan, 948 F.2d 1070, 1074 (8th Cir. 1991)). Thus, the ALJ properly considered this along
with other factors in the credibility analysis.
In sum, the ALJ conducted an express credibility determination, considered several of the
relevant factors, and gave good reasons for finding Plaintiff’s subjective complaints not entirely
credible. The Court will therefore defer to that analysis. See Renstrom v. Astrue, 680 F.3d 1057,
1065 (8th Cir. 2012) (“If an ALJ explicitly discredits the claimant’s testimony and gives good
reason for doing so, [the court] will normally defer to the ALJ’s credibility determination.”)
(quoting Juszczyk v. Astrue, 542 F.3d 626, 632 (8th Cir. 2008)).
D. The ALJ’s RFC Finding and Step Five Finding Are Supported by
Plaintiff’s final contention is that a finding of disability is warranted because Plaintiff has
had a substantial loss of ability to meet the demands of basic work-related activities on a
sustained basis and the unskilled sedentary occupational base is significantly eroded. Plaintiff
provides no additional specific arguments regarding this contention. The Court will interpret this
section of Plaintiff’s brief as a general challenge to the ALJ’s RFC finding and/or to the ALJ’s
finding at Step Five that there were jobs existing in the national economy that Plaintiff could
After review of the record, the Court finds that the RFC determination is supported by
substantial evidence. A claimant’s RFC is “the most a claimant can do despite [the claimant’s]
Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R.
§ 404.1545(a)(1)). “The ALJ must assess a claimant’s RFC based on all relevant, credible
evidence in the record, ‘including the medical records, observations of treating physicians and
others, and an individual’s own description of his limitations.’” Tucker v. Barnhart, 363 F.3d
781, 783 (8th Cir. 2004) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)).
Here, the ALJ determined that Plaintiff was capable of performing sedentary work, with
some additional limitations such as a sit/stand option and a limitation to simple work. (Tr. 14).
That determination was supported by substantial evidence in the record, including the opinion of
nonexamining state agency physician Dr. Ditmore, who reviewed Plaintiff’s records and
determined that he could perform work at the light exertional level with a limitation to
occasionally climbing and stooping; 3 the largely normal examination findings discussed above;
and Plaintiff’s own accounts of his daily activities.
In addition, the ALJ’s determination at Step Five that there were other jobs that existed in
the national economy that Plaintiff could perform was supported by substantial evidence. At Step
Five, the Commissioner bears the burden of proving that there are a significant number of jobs
available in the national economy that the claimant can perform. Ellis v. Barnhart, 392 F.3d 988,
993 (8th Cir. 2005); 20 C.F.R. § 404.1560(c). Here, in finding that this burden had been met, the
ALJ relied on the testimony of a vocational expert. (Tr. 18). At the hearing, the ALJ described to
the vocational expert a hypothetical individual who had all the limitations in Plaintiff’s RFC. (Tr.
44-45). The vocational expert testified that a person of Plaintiff’s age and education level with
those limitations could perform representative jobs such as dowel inspector in the woodworking
industry (Dictionary of Occupational Titles No. 669.687-014, 430 jobs in Missouri and 16,500
jobs nationally); egg processor in the pharmaceutical industry (Dictionary of Occupational
Titles. No. 559.687-034, 620 jobs in Missouri and 27,350 jobs nationally); and patcher in the
household appliances industry (Dictionary of Occupational Titles No. 723.687-010, 1,025 jobs in
Missouri and 41,625 jobs nationally). (Tr. 44-45). Testimony from a vocational expert based on a
properly-phrased hypothetical that includes all of Plaintiff’s limitations constitutes substantial
evidence at Step Five. See Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006); Roe v.
Chater, 92 F.3d 672, 675 (8th Cir. 1996).
The ALJ noted that he found the evidence of record supported more limitations that were
described by Dr. Ditmore. (Tr. 16).
Plaintiff appears to suggest that because the RFC was for less than a full range of
sedentary work, he should have been found to be disabled. However, as Social Security Ruling
96-9p states, “the mere inability to perform substantially all sedentary unskilled occupations does
not equate with a finding of disability. There may be a number of occupations from the
approximately 200 occupations administratively noticed, and jobs that exist in significant
numbers, that an individual may still be able to perform even with a sedentary occupational base
that has been eroded.” SSR 96-9p, 1996 WL 374185, at *4 (July 2, 1996). Here, the ALJ
properly consulted a vocational expert, who identified three such jobs that Plaintiff could
perform. Thus, the Court finds that the Step Five determination was supported by substantial
For the foregoing reasons, the Court finds the ALJ’s decision is supported by substantial
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the
Commissioner of Social Security is AFFIRMED.
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 31st day of July, 2017.
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