Bankhead v. Berryhill

Filing 24

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the Commissioner's decision is AFFIRMED, and plaintiff's complaint (#1) is DISMISSED with prejudice. A separate judgment will accompany this Order. Signed by District Judge Stephen N. Limbaugh, Jr on 1/14/19. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEJUAN BANKHEAD, III,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,

Defendant.

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Case No. 4:17-cv-2441-SNLJ

MEMORANDUM AND ORDER
The Commissioner of the Social Security Administration denied plaintiff Dejuan
Bankhead’s applications for disability insurance benefits and supplemental security
income benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. and
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. Bankhead now seeks
judicial review. The Commissioner opposes the motion. The issues being fully briefed,
and for the reasons set forth, this Court will AFFIRM the Commissioner’s decision.
I.

Procedural History
Bankhead’s application was denied at the initial determination level. He then

appeared before an Administrative Law Judge (“ALJ”). The ALJ found Bankhead is not
disabled because his symptoms were not supported by the medical evidence available.
Bankhead then filed a request for review of the ALJ’s decision with the Appeals Council
of the Social Security Administration. The Appeals Council denied review. Thus, the
decision of the ALJ stands as the final decision of the Commissioner. See 20 C.F.R. §§

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404.981, 416.1481. Bankhead now seeks review by this Court pursuant to 42 U.S.C. §
405(g).
II.

Disability Determination—Five Steps
A disability is defined as the “inability to engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which . . . 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), 1382c(a)(3)(A). A claimant has a disability “only if his physical
or mental impairment or impairments are of such severity that he is not only unable to do
his previous work but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national
economy[.]” Id. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The Commissioner follows a five-step sequential process when evaluating whether
the claimant has a disability. 20 C.F.R. §§ 404.1520(a)(1), 416.920(a)(1). First, the
Commissioner considers the claimant’s work activity. If the claimant is engaged in
substantial gainful activity, the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i),
416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the
Commissioner looks to see “whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work
activities.” Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003); see also 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). “An impairment is not severe if it amounts only to
a slight abnormality that would not significantly limit the claimant’s physical or mental
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ability to do basic work activities.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007);
see also 20 C.F.R. §§ 404.1520(c), 404.1520a(d), 416.920(c), 416.920a(d).
Third, if the claimant has a severe impairment, the Commissioner considers the
impairment’s medical severity. If the impairment meets or equals one of the
presumptively disabling impairments listed in the regulations, the claimant is considered
disabled, regardless of age, education, and work experience. 20 C.F.R. §§
404.1520(a)(4)(iii), (d); 416.920(a)(3)(iii), (d).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of
the presumptively disabling impairments, the Commissioner assesses whether the
claimant retains the “residual functional capacity” (RFC) to perform his or her past
relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(5)(i), 416.920(a)(4)(iv),
416.945(a)(5)(i). An RFC is “defined wholly in terms of the claimant’s physical ability
to perform exertional tasks or, in other words, what the claimant can still do despite his or
her physical or mental limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003)
(internal quotations omitted); see also 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). While
an RFC must be based “on all relevant evidence, including the medical records,
observations of treating physicians and others, and an individual’s own description of his
limitations,” an RFC is nonetheless an “administrative assessment”—not a medical
assessment—and therefore “it is the responsibility of the ALJ, not a physician, to
determine a claimant’s RFC.” Boyd v. Colvin, 831F.3d 1015, 1020 (8th Cir. 2016). Thus,
“there is no requirement that an RFC finding be supported by a specific medical
opinion.” Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016). Ultimately, the claimant
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is responsible for providing evidence relating to his RFC and the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging
for a consultative examination(s) if necessary, and making every reasonable effort to help
[the claimant] get medical reports from [the claimant’s] own medical sources.” 20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3). If, upon the findings of the ALJ, it is determined the
claimant retains the RFC to perform past relevant work, he or she is not disabled. 20
C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC does not allow the claimant to perform past relevant
work, the burden of production to show the claimant maintains the RFC to perform work
that exists in significant numbers in the national economy shifts to the Commissioner.
See Bladow v. Apfel, 205 F.3d 356, 358–59 n.5 (8th Cir. 2000); 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can make an adjustment to other
work that exists in significant numbers in the national economy, the Commissioner finds
the claimant not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)( v). If the
claimant cannot make an adjustment to other work, the Commissioner finds the claimant
disabled. Id. At Step Five, even though the burden of production shifts to the
Commissioner, the burden of persuasion to prove disability remains on the claimant.
Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
III.

The ALJ’s Decision
At Step One, the ALJ found Bankhead met the insured status requirements

through June 30, 2015, and had not engaged in substantial gainful activity since
November 15, 2012. (Tr. 12). At Step Two, the ALJ found Bankhead suffers from five
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medically determinable impairments: (1) major depressive disorder; (2) post-traumatic
stress disorder; (3) obsessive-compulsive disorder; (4) obesity; and (5) chronic low back
pain presumably attributed to ‘minimal’ thoracic scoliosis. (Tr. 13).1 At Step Three, the
ALJ concluded Bankhead does not have an impairment or combination of impairments
that meets or equals one of the presumptively disabling impairments listed in the
regulations. (Tr. 14).
Next, in beginning the analysis of Step Four, the ALJ determined Bankhead’s
RFC.2 The ALJ found that Bankhead
has the residual functional capacity to perform medium work as defined in
20 C.F.R. 404.1567(c) and 416.967(c) except that he is limited to
performing simple, routine, and repetitive tasks in a work environment free
of fast-paced production requirements. He is capable of simple, workrelated decisions and can tolerate routine work place changes. He can
perform work responsibilities that do not require public interaction and that
involve only occasional interaction with co-workers and supervisors.
(Tr. 18). As part of this determination, the ALJ found Bankhead’s allegations
about his intellectual symptoms’ intensity, persistence, and limiting effects are not
entirely consistent with the medical evidence and other evidence in the record. (Tr. 19).
The ALJ noted a work history that “is not entirely demonstrative of a strong employment
motivation” and highlighted a variety of daily activities that appeared inconsistent with a
total intellectual disability. For example, it was highlighted that Bankhead taught his
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Bankhead makes no arguments before this Court related to his physical impairments, but
instead focuses purely on the alleged disabling effects of his mental impairments.
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In the past, there has been some confusion as to when the RFC is determined, which affects who holds
the burden of proof in establishing an appropriate RFC. In this Circuit, it has been held that “the RFC is
used at both step four and five of the evaluation process, but it is determined at step four, where the
burden of proof rests with the claimant.” Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005) (quoting
Young v. Apfel, 221 F.3d 1065, 1069 n. 5 (8th Cir. 2000)).

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girlfriend how to drive, provides childcare to his girlfriend’s children, manages his own
finances, spends time playing his PlayStation gaming console, works various odd jobs,
restored his grandparent’s house, and even “performed an engine swap” on a friend’s
Chevy Impala. (Tr. 19). Medical records, meanwhile, suggested a “strong psychosomatic
component as [Bankhead’s] symptoms change every time they are discussed” and
indicated, on several occasions, a total alleviation of depression and anxiety symptoms—
such as when Bankhead purchased his PlayStation and was able to play games “whenever
he felt down.” (Tr. 21). The ALJ concluded that “[o]verall, the claimant failed to exhibit
significant mood abnormalities and failed to exhibit significant deficits in terms of
cognitive functioning, memory, or concentration, all of which are inconsistent with the
severity of ongoing symptoms described [by] claimant[.]” (Tr. 22).
With an RFC determination in hand, the ALJ continued on through Step Four to
determine whether Bankhead can perform his past relevant work given his designated
RFC. The ALJ determined Bankhead cannot perform any past relevant work. (Tr. 25).
At Step Five, the ALJ analyzed whether Bankhead can successfully adjust to other work.
The ALJ noted that if Bankhead had the RFC to perform the full range of medium
work—in other words, if Bankhead’s RFC matched perfectly with the medium work
Medical-Vocational Guidelines (the “Grids”)—then the Grids would direct a finding of
not disabled; but, additional limitations impede Bankhead’s ability to perform all or
substantially all of the medium work requirements. Thus, the ALJ relied on vocational
expert (VE) testimony to determine the extent to which these limitations erode
Bankhead’s occupational base to perform medium work. The VE testified Bankhead is
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able to perform work as a dishwasher, cleaner, and hand packer even after considering all
of the limitations in Bankhead’s RFC. (Tr. 26). The ALJ then found these jobs exist in
significant numbers in the national economy and concluded Bankhead is not disabled.
(Tr. 26).
IV.

Standard of Review
The Court must affirm the Commissioner’s decision if it is supported by

substantial evidence on the record as a whole. 42 U.S.C. §§ 405(g); 1383(c)(3).
Substantial evidence is less than a preponderance of the evidence but enough that a
reasonable person would find it adequate to support the conclusion. Johnson v. Apfel,
240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial evidence test,” however, is “more
than a mere search of the record for evidence supporting the [Commissioner’s] findings.”
Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (alteration in original) (quoting
Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987)). The Court must also consider
any evidence that fairly detracts from the Commissioner’s decision. Id. “[I]f there is
substantial evidence on the record as a whole, [the Court] must affirm the administrative
decision, even if the record could also have supported an opposite decision.” Weikert v.
Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992). In reviewing whether the ALJ’s decision
was supported by substantial evidence, this Court does not substitute its own judgment
for that of the ALJ—even if different conclusions could be drawn from the evidence, and
even if this Court may have reached a different outcome. McNamara v. Astrue, 590 F.3d
607, 610 (8th Cir. 2010).

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V.

Discussion
Bankhead alleges the ALJ erred in three respects. First, Bankhead argues the ALJ

failed to properly consider whether he was disabled pursuant to Listing 12.05 in that the
ALJ disregarded a valid IQ test from 1996 that fell within the listing guidelines. Second,
Bankhead argues his designated RFC is not supported by “some medical evidence” as is
“required under the standards” contained in Singh v. Apfel, 222 F.3d 448 (8th Cir. 2000)
and Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Specifically, Bankhead asserts
both that the ALJ “offer[ed] absolutely no rationale relative to why great weight was
given to [Dr. Karen Hampton,] a one-time consultative evaluator” and that there was no
medical evidence tending to show he could work a full-time schedule. Third, Bankhead
argues the hypothetical question posed to the vocational expert “fail[s] to capture the
concrete consequences of [his] impairments.”
A. Listing 12.05 and Bankhead’s Qualifying IQ Score
In arguing the ALJ misapplied Listing 12.05, Bankhead asserts the “listings
indicate[] the lowest IQ score [is] to be utilized in evaluat[ing] whether [Bankhead] met
the listing of impairments.” The lowest IQ score occurred in 1996, when testing revealed
Bankhead had a verbal IQ score of 66, a performance IQ score of 80, and a full scale IQ
score of 71. (Tr. 526). A prior IQ test from 1993 resulted in higher scores: a verbal IQ
score of 78, a performance IQ score of 87, and a full scale IQ score of 81. (Id.). The most

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recent IQ test from 2016 resulted in a verbal IQ score of 80 and a full scale IQ score of
79. (Tr. 712).3
Bankhead focuses on his 1996 IQ test because one of the requirements of Listing
12.05 is that he suffer from a certain severity of “subaverage general intellectual
functioning,” which essentially mandates, among other things, that Bankhead have a
qualifying score below 70. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05. Though the
severity requirement can be established in one of four ways under the various paragraphs
of Listing 12.05, Bankhead appears to rely only on the “paragraph C criteria”—it is not
altogether clear from his briefing, as he makes no arguments addressing the nuanced
parameters of the other paragraphs. Paragraph C requires “a valid verbal, performance, or
full scale IQ of 60 through 70 and a physical or other mental impairment imposing an
additional and significant work-related limitation of function.” Id. at § 12.05(C). The only
score that would fit this description is Bankhead’s verbal IQ score of 66 from his 1996
test. Thus, Bankhead argues the ALJ erred at Step Three when failing to account for this
particular score in the decision.
The flaw in Bankhead’s argument is that Listing 12.05 does not simply adopt
whatever lowest score can be found in a long history of IQ tests. Rather, in addressing
how IQ tests will be utilized, the regulations state that

Bankhead also achieved a “perceptional reasoning” score of 88, a “working memory” score of
77, and a “processing speed” score of 86. These appear to be cognate factors of the more
generalized “performance” IQ score used in the 1993 and 1996 tests, which derive from a
previous version of the Wechsler Adult Intelligence Scale—WAIS-III, with the newer version
being WAIS-IV.
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[I]n cases where more than one IQ is customarily derived from the test
administered, e.g., where verbal, performance, and full scale IQs are
provided in the Wechsler series, we use the lowest of these in conjunction
with 12.05.
Id. at § 12.00(D)(6)(c) (emphasis added).
Thus, the regulations do not mandate that an ALJ pick the lowest-ever IQ score
recorded. Rather, the ALJ is to pick the lowest recorded IQ score amongst the various
scores used in a single test (WAIS-III, for example, used “verbal,” “performance,” and
“full scale”) as the baseline for applying the four severity criteria paragraphs of Listing
12.05. See Miles v. Barnhart, 374 F.3d 694, 700 (8th Cir. 2004) (“[T]he regulations
provide that in cases where more than one score is derived from a valid IQ test, an ALJ
must choose the lowest score[.]”); see also Brown v. Astrue, 2013 WL 99174 at *3 (N.D.
Iowa Jan. 8, 2013). Separate from the situation of choosing a particular IQ score amongst
many generated in a single test, the Eighth Circuit has been clear that “the regulations do
not address” the situation of choosing a controlling IQ score “when multiple tests have
been given.” Miles, 374 F.3d at 700.
Finding no support in the regulations, then, Bankhead turns next to Muncy v.
Apfel, 247 F.3d 728, 734 (8th Cir. 2001)4 in asserting a person’s IQ is presumed to
remain stable over time and that the ALJ, therefore, had a responsibility to explain why
he discounted Bankhead’s earlier qualifying verbal IQ score of 66. But, Muncy involved

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Bankhead also cites to a number of opinions from other circuits. However, this Court is bound
only by the precedent of the Eighth Circuit and, in any event, Bankhead’s string citation of case
law from other circuits is the very same string citations set forth in Muncy. Accordingly, the
Court limits its focus to the applicability of Muncy alone, which necessarily encompasses the
viewpoints of the other circuits to the extent the Eighth Circuit found them persuasive.

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a different situation than is present here. That case involved two IQ scores, from two
tests, that differed by more than 25 points—a 42% increase in intellectual functioning
within six years—and the Eighth Circuit was narrowly critical of the ALJ’s failure to
rationally address why the claimant’s first score was disregarded (the ALJ summarily
chalked it up to “medical improvement”) in light of such an unusually large discrepancy.
Id. at 734-735.
More apropos to the situation here is Phillips v. Colvin, 721 F.3d 623 (8th Cir.
2013), which later distinguished Muncy. In Phillips, the largest discrepancy in scores was
12 points (similar to the situation in this case) and “unlike Muncy[,] the ALJ did address
the discrepancy” when finding the newer IQ test was “more accurate and consistent with
[claimant’s] daily activities.” Id. at 627. The Eighth Circuit held the ALJ did not err in
relying on reports about the claimant’s daily functioning—reports that indicated claimant
could cook, drive a car, engage in leisure activities with friends, perform household
chores, shop for groceries, and take care of his own personal hygiene—which suggested
“a change in [claimant’s] intellectual functioning” inconsistent with earlier IQ scores. Id.
at 628-629.
Similarly here, the ALJ rejected Bankhead’s earlier IQ scores because “the record
repeatedly reflects the claimant’s ability to live independently, to help and to perform a
wide range of daily activities” that better reflected “claimant’s most recent consultative
examination [that] generated a full scale IQ score of 79.” (Tr. 15). The ALJ noted similar
criteria as was relied upon in Phillips—the ability to drive, work, go to school, engage in
leisure activities, assist with chores, take care of one’s self, etc.—and concluded the
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“longitudinal evidence” and “definitive absence of deficits in adaptive functioning” was
enough reason to reject application of Listing 12.05. (Id.).
On the basis of the substantial evidence contrary to Bankhead’s sole qualifying IQ
score from 1996, evidence the ALJ is required to consider in evaluating the credibility of
a particular IQ score, the Court holds the ALJ did not err in disregarding Bankhead’s
earlier score. Miles, 374 F.3d at 699; see also Clark v. Apfel, 141 F.3d 1253, 1255 (8th
Cir. 1998) (“[T]est results of this sort should be examined to assure consistency with
daily activities and behavior.”) (internal quotations and citations omitted).
B. The Adequacy of the ALJ’s Weight Assignment to Consultant Hampton
and the ALJ’s Findings on Bankhead’s Ability to Engage in Full-Time
Employment
Regarding Bankhead’s second argument, this Court has previously explained that
Singh and Lauer require, in essence, that the ALJ “draw from the medical records as a
whole in formulating an RFC; however, it is the ALJ who determines the appropriate
weight and credibility given to the medical records in total—records that are often
conflicting as between providers or by a single provider over multiple visits.” Chandler v.
Berryhill, 2018 WL 5786267 at *4 (E.D. Mo. Nov. 5, 2018). Bankhead appears to believe
that, in determining the appropriate weight to give to a particular medical source, an ALJ
must always set forth the rationale for the weight ultimately assigned. Yet, no such
burden is imposed upon an ALJ. To the contrary, the only time an ALJ must “give good
reasons … for the weight [he or she] give[s]” is in conjunction with considering the
medical opinions of a “treating source”—i.e. someone “who provides [a claimant], or has
provided [a claimant], with medical treatment or evaluation and who has, or has had, an
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ongoing treatment relationship with [claimant].” See 20 C.F.R. §§ 404.1527(a)(2),
404.1527(c)(2); see also 20 C.F.R. §§ 416.927(a)(2), (c)(2) . Otherwise, in considering
the opinions of a non-treating source, such as a “psychological consultant,” the ALJ need
only “explain in the decision the weight given to the opinions of … [the] psychological
consultant.” 20 C.F.R. § 404.1527(e)(2)(ii) (2012); see also 20 C.F.R. §
416.927(e)(2)(ii)(2012).5
There is a marked difference between the requirement of giving “good reasons”
for the weight assigned to treating sources and merely “explaining the weight given” to
non-treating sources—a difference overlooked in Bankhead’s argument. Indeed, this
Court has recently explained that, in the case of non-treating sources, simply assigning a
particular weight, without further comment, is enough to satisfy the requirements of
Section 404.1527. See Bennett v. Berryhill, 2018 WL 4593503 at *6 (E.D. Mo. Sept. 25,
2018) (rejecting claimant’s argument that remand was required because ALJ did not
“adequately explain the weight she assigned” to a non-treating source where record
showed the ALJ, in fact, assigned “partial weight” to the source). In respecting the
express language of Section 404.1527 (and Section 416.927), the Court holds the ALJ did

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Section 404.1527, which has itself undergone a number of revisions over the years, has been
outright superseded by Section 404.1520c for all claims filed after March 27, 2017. The new rule
states “we will not … give any specific evidentiary weight … to any medical opinion(s) …
including those from your medical sources,” indicating a complete abandonment of the assignedweight regime in favor of a new persuasiveness-of-the-evidence regime articulated in Section
404.1520c(b). Compare 20 C.F.R. § 404.1527 (2017); with 20 C.F.R. § 404.1520c(b) (2017). In
any event, the Court considers only the language of Section 404.1527 as it appeared at the time
relevant to Bankhead’s claims. Even in doing so, however, the Court notes no version of Section
404.1527 ever required a specific rationale to be given for the weight assigned to a non-treating
source.

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not err by merely assigning a particular weight (“great weight”) to the opinions of
consultant Hampton without providing further reasoning.
As for Bankhead’s second criticism under Singh and Lauer, that the ALJ failed to
account for his inability to work a rigorous, full-time scedule (what Bankhead assumes is
“substantial gainful activity” under the regulations), the standard to be applied is whether
there is substantial evidence in the record to draw such a conclusion. See McKinney v.
Apfel, 228 F.3d 860, 863-864 (8th Cir. 2000). The Court has little trouble finding the
record does, in fact, contain substantial evidence to support the ALJ’s conclusion that
Bankhead can work full time. And, in any event, “substantial gainful activity” does not
absolutely require full-time employment as Bankhead suggests. See 20 C.F.R. §§ 404,
1505(a) (defining “disability” as the “inability to do any substantial gainful activity”),
404.1572(a) (noting “[y]our work may be substantial even if it is done on a part-time
basis”); see also 20 C.F.R. §§ 416.905(a), 416.972(a).
For his part, Bankhead does not point to a particular exertional limitation
attributable to his mental impairments; instead he seems to point to his 1996 IQ test and
the nebulous totality of his “treatment records.” But, Bankhead provides no medical
justification or case law to explain why a below-average IQ, in itself, would constitute
substantial evidence of his inability to work full time. And this Court has found no
particular treatment record (or sets of records) that would substantially demonstrate
Bankhead incapacity for full-time employment.
To the contrary, the record indicates—as Bankhead acknowledges himself—that
he has the exertional capacity to complete a two-year vocational program in automotive
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technology, attend mechanic’s school, perform an “engine swap” on a Chevy Impala,
work at a fast-food restaurant, remodel his grandparent’s house, provide childcare, and
even “mak[e] a business plan with [the] intent to start a mechanic shop.” He also plays
video games, performs light housework, travels out of town with friends, goes “to the
club,” and works a number of “odd jobs” (sometimes in other states). Bankhead
references disabling depression, anxiety, and PTSD-like symptoms, but the record
suggests they are highly situational—based upon relationship problems and legal
difficulties—and that medication has been quite successful in alleviating symptoms,
which weighs against finding in favor of disability. See Medhaug v. Astrue, 578 F.3d 805
(“An impairment which can be controlled by treatment or medication is not considered
disabling.”).
That being said, this Court is also mindful of Bankhead’s profoundly difficult
history as reflected in the records, which is filled with sobering details of homelessness,
physical and emotional abuse, frequent nightmares, and drug dependency that would be
difficult for anyone to overcome. Even so, these challenges do not, in themselves,
demonstrate a disability—though they may certainly contribute to the purported intensity
of Bankhead’s impairments. The record, ultimately, makes clear that Bankhead’s
depression and anxiety respond quite positively to medication, distractions such as video
games, and a supportive girlfriend. Some records go so far as to suggest Bankhead’s
symptoms might be alleviated by discontinuing chronic, heavy marijuana use. Moreover,
there is a notable discontinuation of mental health treatment after December 2015 (and

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sporadic treatment between 2012 and 2015) that tends to suggest Bankhead’s symptoms
are, indeed, situational and effectively controlled with treatment and medication.
In sum, there is substantial evidence in the record to demonstrate an exertional
capacity commensurate with full-time employment notwithstanding the challenges faced
by Bankhead. It is not this Court’s prerogative to substitute its own judgment for that of
the ALJ where substantial evidence otherwise supports the ALJ’s conclusions.
McNamara, 590 F.3d at 610. Therefore, because substantial evidence supporting the ALJ
is present here, the Court holds the ALJ did not err in concluding that Bankhead is
capable of substantial gainful activity. See McKinney, 228 F.3d at 864 (substantial
evidence supported ALJ’s determination that claimant was capable of full-time
employment where record provided contrary evidence that claimant did not, in fact,
suffer from disabling fatigue).
C. The Sufficiency of ALJ’s Hypothetical Question to the Vocational Expert
Bankhead’s final argument is that the ALJ erred when submitting a “hypothetical
question to the vocational expert [that] failed to capture the concrete consequences of
plaintiff’s impairment.” A hypothetical question is “properly formulated if it sets forth
impairments supported by substantial evidence in the record and accepted as true by the
ALJ.” Guilliams v. Barnhart, 393 F.3d 798, 804 (8th Cir. 2005). Thus, so long as the
ALJ’s decision is supported by substantial evidence, he or she is free to include only
those impairments and limitations that are deemed credible. See Lacroix v. Barnhart, 465
F.3d 881, 889 (8th Cir. 2006). Consequently, Bankhead’s third argument is a redundancy
to his attacks on the evidentiary basis of the ALJ’s RFC determination.
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The Court notes Bankhead never actually explains how the hypothetical question
“failed to capture the concrete consequences of plaintiff’s impairment.” But, it is assumed
from his other arguments that he is focusing on the alleged inability to work full time or,
else, his allegedly debilitating depression and anxiety symptoms. As was already
explained, the ALJ had ample evidence to conclude neither of these allegations were
credible. And it is the ALJ’s function to make credibility determinations in light of
competing evidence. Guilliams, 393 F.3d at 801; Julin v. Colvin, 826 F.3d 1082, 1086
(8th Cir. 2016). Without the benefit of an argument that actually explains how the
hypothetical question was flawed, the Court will not second guess the ALJ’s
determinations nor invent arguments on Bankhead’s behalf.
VI.

Conclusion
This Court’s review is limited to determining whether the ALJ’s findings are

based on correct legal standards and supported by substantial evidence. It does not
substitute its own judgment for that of the ALJ. McNamara, 590 F.3d at 610. Having
found the ALJ’s conclusions were supported by substantial evidence and that legal
standards were correctly applied, this Court affirms the ALJ’s decision.
Accordingly,
IT IS HEREBY ORDERED that the Commissioner’s decision is AFFIRMED,
and plaintiff’s complaint (#1) is DISMISSED with prejudice. A separate judgment will
accompany this Order.

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So ordered this 14th day of January 2019.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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