Omerovic v. Berryhill

Filing 28

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and Plaintiff's Complaint is DISMISSED, with prejudice. A separate judgment shall be entered incorporating this Memorandum and Order. Signed by Magistrate Judge Noelle C. Collins on 08/30/2019. (TMT)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

FIKRETA OMEROVIC,
Plaintiff,
v.
ANDREW M. SAUL,1
Commissioner of Social Security,
Defendant.

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Case No. 4:18-CV-00694-NCC

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision
of the Commissioner denying the application of Fikreta Omerovic (“Plaintiff”) for Supplemental
Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq.
and for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C.
§§ 401, et seq. Plaintiff has filed a brief in support of the Complaint (Doc. 23) and Defendant
has filed a brief in support of the Answer (Doc. 27). The parties have consented to the
jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C.
§ 636(c) (Doc. 9).
I. PROCEDURAL HISTORY
Plaintiff filed her applications for SSI and DIB on April 7, 2014 (Tr. 164-79). Plaintiff
was initially denied on August 26, 2014, and she filed a Request for Hearing before an
Administrative Law Judge (“ALJ”) on November 4, 2014 (Tr. 96-101, 105-09). After a hearing,
1

Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Andrew M. Saul shall be substituted for Acting Commissioner
Nancy A. Berryhill 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).

by decision dated June 20, 2017, the ALJ found Plaintiff not disabled (Tr. 7-25). On March 5,
2018, the Appeals Council denied Plaintiff’s request for review (Tr. 1-6). As such, the ALJ’s
decision stands as the final decision of the Commissioner.
II. DECISION OF THE ALJ
The ALJ determined that Plaintiff meets the insured status requirements of the Social
Security Act through December 31, 2016, and that Plaintiff has not engaged in substantial
gainful activity since January 1, 2014, the alleged onset date (Tr. 12). The ALJ found Plaintiff
has the severe impairments of anxiety, post-traumatic stress disorder, depression, and insomnia,
but that no impairment or combination of impairments met or medically equaled the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 13). After
considering the entire record, the ALJ determined Plaintiff has the residual functional capacity
(“RFC”) to perform a full range of work at all exertional levels with the following non-exertional
limitations (Tr. 15). She is limited to performing simple, routine and repetitive tasks (Id.). She
is limited to simple work-related decisions (Id.). She can interact occasionally with supervisors,
co-workers, and the public (Id.). The ALJ found Plaintiff capable of performing past relevant
work as a garment folder, night cleaner, and hand packager (Tr. 18). In the alternative, the ALJ
found that other jobs exist in significant numbers in the national economy that Plaintiff can also
perform including cleaner II, salvage laborer, and housekeeping cleaner (Tr. 19). Thus, the ALJ
concluded that a finding of “not disabled” was appropriate (Tr. 20). Plaintiff appeals, arguing a
lack of substantial evidence to support the Commissioner’s decision.
III. LEGAL STANDARD
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “If a claimant fails

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to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is
determined to be not disabled.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.
20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20
C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as
“any impairment or combination of impairments which significantly limits [claimant’s] physical
or mental ability to do basic work activities. . . .” Id. “‘The sequential evaluation process may
be terminated at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.’” Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.
2001), citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment which meets or
equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d).
If the claimant has one of, or the medical equivalent of, these impairments, then the claimant is
per se disabled without consideration of the claimant’s age, education, or work history. Id.
Fourth, the impairment must prevent the claimant from doing past relevant work. 20
C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to
establish his or her RFC. Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step
four of this analysis, the claimant has the burden of showing that she is disabled.”). The ALJ
will review a claimant’s RFC and the physical and mental demands of the work the claimant has
done in the past. 20 C.F.R. § 404.1520(f).

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Fifth, the severe impairment must prevent the claimant from doing any other work. 20
C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential analysis, the
Commissioner has the burden of production to show evidence of other jobs in the national
economy that can be performed by a person with the claimant’s RFC. Steed, 524 F.3d at 874
n.3. If the claimant meets these standards, the ALJ will find the claimant to be disabled. “The
ultimate burden of persuasion to prove disability, however, remains with the claimant.” Young v.
Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). See also Harris v. Barnhart, 356 F.3d 926, 931
n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377
F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate
RFC remains on the claimant, even when the burden of production shifts to the Commissioner at
step five.”). Even if a court finds that there is a preponderance of the evidence against the ALJ’s
decision, the decision must be affirmed if it is supported by substantial evidence. Clark v.
Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but
is enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See also Cox v.
Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. Id. Instead, the district court must simply determine whether the quantity and quality
of evidence is enough so that a reasonable mind might find it adequate to support the ALJ’s
conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228
F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ, who is the factfinder. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004). Thus, an administrative
decision which is supported by substantial evidence is not subject to reversal merely because

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substantial evidence may also support an opposite conclusion or because the reviewing court
would have decided differently. Krogmeier, 294 F.3d at 1022.
IV. DISCUSSION
In her appeal of the Commissioner’s decision, Plaintiff raises three issues. First, Plaintiff
asserts that the ALJ failed to resolve inconsistencies within the vocational expert’s testimony
(Doc. 23 at 2-5). Second, Plaintiff argues that the ALJ’s credibility determination is deficient
because it is unsupported by the evidence (Id. at 5-10). Third, Plaintiff asserts that the ALJ’s
RFC determination is not supported by substantial evidence (Id. at 10-15). For the following
reasons, the Court finds that Plaintiff’s arguments are without merit, and that the ALJ’s decision
is based on substantial evidence and is consistent with the Regulations and case law.
A. Evaluation of Plaintiff’s Subjective Complaints
The Court will first consider the ALJ’s evaluation Plaintiff’s subjective complaints,2 as
the ALJ’s evaluation of Plaintiff’s symptoms was essential to the ALJ’s determination of other
issues, including Plaintiff’s RFC. See Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010)
(“[The plaintiff] fails to recognize that the ALJ’s determination regarding her RFC was
influenced by his determination that her allegations were not credible.”) (citing Tellez v.
Barnhart, 403 F.3d 953, 957 (8th Cir. 2005)). In assessing a claimant’s credibility, the ALJ must
consider: (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. Finch v. Astrue, 547 F.3d
Social Security Ruling (SSR) 16-3p eliminated the term “credibility” from the analysis of
subjective complaints. However, the regulations remain unchanged; “Our regulations on
evaluating symptoms are unchanged.” SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017); 20 C.F.R.
§§ 404.1529, 416.929.
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933, 935 (8th Cir. 2008); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). “The
credibility of a claimant’s subjective testimony is primarily for the ALJ to decide, not the
courts.” Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001). “If an ALJ explicitly
discredits the claimant’s testimony and gives good reason for doing so, [a court] will normally
defer to the ALJ’s credibility determination.” Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir.
2003). See also Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010); Cox v. Barnhart, 471
F.3d 902, 907 (8th Cir. 2006). For the following reasons, the Court finds that the reasons offered
by the ALJ in support of her credibility determination are based on substantial evidence.
First, the ALJ reviewed the objective medical evidence of record and determined it failed
to support the severity of Plaintiff’s alleged symptoms. Specifically, the ALJ found that “the
objective medical record establishes that while the claimant has some symptoms secondary to
her mental impairments these symptoms are not as limiting as she alleges” (Tr. 16). In support
of her assessment, the ALJ noted Plaintiff’s largely normal mental health exams. For example,
as noted by the ALJ, upon intake at the Family Care Health Centers to establish mental health
care, Plaintiff reported significant depressive symptoms, but her exam was generally
unremarkable, and after starting treatment, Plaintiff reported improved mood, feeling much
better, and feeling proud of herself for seeking care for her mental health (Tr. 16, 383, 399, 405,
437, 444-46, 450, 466-68). An ALJ may determine that subjective complaints are not credible in
light of objective medical evidence to the contrary. Gonzales v. Barnhart, 465 F.3d 890, 895
(8th Cir. 2006).
Second, the ALJ questioned the timing of the Plaintiff’s treatment relative to her
disability claim. The ALJ noted that just after appointing a representative in her disability claim,
Plaintiff presented at the emergency room with “vague reports of shortness of breath and

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otherwise completely normal exam findings” but that prior to this visit, Plaintiff “had no
treatment for her alleged mental impairments” (Tr. 16, 353). Kamann v. Colvin, 721 F.3d 945,
950-51 (8th Cir. 2012) (noting that the ALJ properly considered that the claimant was seen
“relatively infrequently for his impairments despite his allegations of disabling symptoms”);
Casey v. Astrue, 503 F.3d 687, 693 (8th Cir. 2007) (noting that the claimant sought treatment
“far less frequently than one would expect based on the [symptoms] that [he] alleged”). The
ALJ also highlighted the significant gap in Plaintiff’s treatment history; Plaintiff reported that it
had been two to three years since she last had any medical care (Tr. 16, 470). Milam v. Colvin,
794 F.3d 978, 985 (8th Cir. 2015) (noting that gaps in medical treatment contradict plaintiff’s
subjective complaints of disability conditions and supports the ALJ’s decision to deny benefits).
Third, the ALJ repeatedly noted Plaintiff’s improvement with regular treatment (See Tr.
16). For example, by July 2015, just a couple months after starting counseling, Plaintiff reported
feeling much better than she had for a very long time (Tr. 16, 445). Renstrom v. Astrue, 680
F.3d 1057, 1066 (8th Cir. 2012) (conditions which can be controlled by treatment are not
disabling); Davidson v. Astrue, 578 F.3d 838, 846 (8th Cir. 2009) (“Impairments that are
controllable or amenable to treatment do not support a finding of disability.”)
Fourth, the ALJ found that Plaintiff’s “activities indicate she is far more capable than she
alleges” (Tr. 16). In doing so, the ALJ noted that Plaintiff socializes with her family and enjoys
shopping and that her counselor recommended she move, dance, and stay as active as possible
(Tr. 16, 445, 456). Indeed, as indicated by Defendant, at the consultative examination in August
2014, Plaintiff said she got a number of insect bites on her legs after working in her garden (Tr.
335). Further, as noted by the ALJ, Plaintiff reported to the Office of Inspector General

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Investigator3 that she spends most of her days at home taking care of her grandchildren (Tr. 13,
522). See Vance v. Berryhill, 860 F.3d 1114, 1121 (8th Cir. 2017) (“[t]he inconsistency between
[the claimant’s] subjective complaints and evidence regarding her activities of daily living also
raised legitimate concerns about her credibility”); Bernard v. Colvin, 774 F.3d 482, 489 (8th Cir.
2014) (quoting Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001)) (“‘Acts which are
inconsistent with a claimant’s assertion of disability reflect negatively upon that claimant’s
credibility.’”); Ponder v. Colvin, 770 F.3d 1190, 1195 (8th Cir. 2014) (finding the plaintiff’s
reported ability to perform light housework, cook, do laundry, shop, watch TV, drive, leave the
house alone, and regularly attend church “undermines her assertion of total disability”).
Fifth, the ALJ considered Plaintiff’s failure to be more forthcoming with physicians.
Specifically, the ALJ indicated that Plaintiff was uncooperative and vague at her August 2014
consultative exam with Dr. Sherman Sklar (“Dr. Sklar”) and that “the claimant is likely much
more capable than she presented at the exam” (Tr. 14, 343-47). Dr. Sklar found Plaintiff not to
be a “reliable historian” (Tr. 343). The ALJ further noted “if the claimant’s symptoms were as
debilitating as she states, she would have been forthcoming with that information to the
psychological consultative examiner” (Tr. 16). See Julin v. Colvin, 826 F.3d 1082, 1087-88 (8th
Cir. 2016) (discussing evidence in the record “from which the ALJ could infer [the plaintiff’s]
claims were overstated or not entirely reliable”).
For the reasons discussed, the Court finds the ALJ’s evaluation of Plaintiff’s subjective
complaints to be based on substantial evidence and consistent with the Regulations and case law.

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After a hearing was held in this matter, the Office of Disability of Disability Adjudication and
Review (ODAR) requested an investigation into the activities and functioning of the Plaintiff.
The Cooperative Disability Investigations Unit, St. Louis, a branch of the Social Security
Administration’s Office of the Inspector General conducted an investigation and filed a
Summary Report of Investigation dated February 27, 2017 (Tr. 518-23).
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B. RFC
Regulations define RFC as “what [the claimant] can do” despite his “physical or mental
limitations.” 20 C.F.R. § 404.1545(a). “When determining whether a claimant can engage in
substantial employment, an ALJ must consider the combination of the claimant’s mental and
physical impairments.” Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001). “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, 228 F.3d at 863). See also Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013). To
determine a claimant’s RFC, the ALJ must move, analytically, from ascertaining the true extent
of the claimant’s impairments to determining the kind of work the claimant can still do despite
his or her impairments. Anderson v. Shalala, 51 F.3d. 777, 779 (8th Cir. 1995). “Although it is
the ALJ’s responsibility to determine the claimant’s RFC, the burden is on the claimant to
establish his or her RFC.” Buford v. Colvin, 824 F.3d 793, 796 (8th Cir. 2016) (internal citations
omitted).
A “claimant’s residual functional capacity is a medical question.” Lauer, 245 F.3d at 704
(quoting Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000)). The Eighth Circuit clarified in
Lauer that “[s]ome medical evidence . . . must support the determination of the claimant’s RFC,
and the ALJ should obtain medical evidence that addresses the claimant’s ability to function in
the workplace[.]” 245 F.3d at 704 (quoting Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000)
(per curiam) and Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000)). Thus, an ALJ is
“required to consider at least some supporting evidence from a professional.” Id. See also
Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (“The ALJ bears the primary

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responsibility for determining a claimant’s RFC and because RFC is a medical question, some
medical evidence must support the determination of the claimant’s RFC.”); Eichelberger, 390
F.3d at 591.
As previously discussed, the ALJ found Plaintiff has the RFC to perform a full range of
work at all exertional levels with the following non-exertional limitations (Tr. 15). She is limited
to performing simple, routine and repetitive tasks (Id.). She is limited to simple work-related
decisions (Id.). She can interact occasionally with supervisors, co-workers, and the public (Id.).
The Court finds that the ALJ’s RFC determination was based on substantial evidence.
Specifically, as addressed in significant detail above, the ALJ properly addressed the consistency
of Plaintiff’s subjective complaints and in doing so, conducted a complete and detailed analysis
of Plaintiff’s medical record, her activities of daily living, and several other factors. The ALJ
additionally properly addressed the opinion evidence of record.
First, the ALJ considered the August 25, 2014 opinion of State Agency psychological
consultant Marsh Toll, Psy.D. (“Dr. Toll”), affording it “only some weight” (Tr. 74-84). In so
doing, the ALJ found Dr. Toll’s findings “generally consistent” specifically as to mild limitation
in regard to maintaining concentration, persistence, and pace but that Plaintiff’s ongoing issues
with depression, which make concentration difficult, are well-managed (Tr. 17). Indeed, Dr.
Toll generally found Plaintiff not to be significantly limited in most functional areas (See Tr. 8082). In fact, the ALJ found Plaintiff to be more limited than as suggested by Dr. Toll; the ALJ
determined that Plaintiff had moderate limitations with regard to social functioning contrary to
the finding by Dr. Toll of no limitation (Tr. 16-17, 81).
Second, the ALJ reviewed the previously addressed August 2014 consultative exam with
Mr. Sklar (Tr. 17, 343-47). Mr. Sklar assigned Plaintiff a Global Assessment of Functioning

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(GAF)4 score of 55 (Tr. 17). The ALJ indicated that “GAF scores merit little weight in the
disability process” and noted that Mr. Sklar stated that Plaintiff “was not a reliable informant”
and that “this exam was merely a one-time snap shot of the [Plaintiff’s] subjective statement” (tr.
17). The ALJ additionally found the GAF score not consistent with the record of the Plaintiff’s
acknowledged activities including socializing with her family, shopping, and caring for her
grandchildren (Tr. 17, 346, 522).
Third, the ALJ considered the May 9, 2016 opinion of Plaintiff’s counselor, a social
worker, Karen Slaven-Reynolds, M.S.W. (“Ms. Slaven-Reynolds”), affording the opinion little
weight because it was inconsistent with the record (Tr. 17, 503-075). The ALJ further noted that
Ms. Slaven-Reynolds is not an acceptable medical source and only treated Plaintiff for a year
(Tr. 17). Indeed, as a social worker, Ms. Slaven-Reynolds is not an acceptable medical source.
See 20 C.F.R. §§ 404.1513(a); 416.913(a) (effective until March 27, 2017). However, the ALJ
also indicated that she “took this opinion into consideration in reaching the conclusion that
[Plaintiff] could only perform unskilled work” (Tr. 17). Ms. Slaven-Reynolds, as noted by the
ALJ, found that the Plaintiff was unable to or seriously limited in her ability to do unskilled work
(Tr. 17). Specifically, Ms. Slaven-Reynolds indicated that Plaintiff was unable to deal with the
stress of semi-skilled and skilled work and that Plaintiff was seriously limited in her ability to
Global assessment of functioning (GAF) is the clinician’s judgment of the individual’s overall
level of functioning, not including impairments due to physical or environmental limitations.
American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders, 32-34 (4th
ed. rev. 2000). Expressed in terms of degree of severity of symptoms or functional impairment,
GAF scores of 31 to 40 represent “some impairment in reality testing or communication or major
impairment in several areas, such as work or school, family relations, judgment, thinking, or
mood,” 41 to 50 represents “serious,” scores of 51 to 60 represent “moderate,” scores of 61 to 70
represent “mild,” and scores of 90 or higher represent absent or minimal symptoms of
impairment. Id. at 32.
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Ms. Slaven-Reynolds’ report was inadvertently filed a second time in the transcript (See Tr.
512-16). The Court will refer to the report’s first reference alone.
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travel to unfamiliar places and unable to use public transportation (Tr. 17). The ALJ also
considered the signature of Jaron Asher, M.D. (“Dr. Asher”) and the associated annotation to
Ms. Slaven-Reynolds’ report, affording it no weight as Dr. Asher indicated that he did not treat
the claimant (Tr. 17).
Fourth, the ALJ reviewed the opinion of Plaintiff’s treating physician Kenneth E. Hemba,
M.D. (“Dr. Hemba”) who in a July 2016 letter stated that he agreed with Ms. Slaven-Reynolds’
opinion and that he fully supported the Plaintiff’s application for disability benefits due to her
psychiatric illness (Tr. 17, 517). Dr. Hemba did not comment any further regarding Plaintiff’s
functional limitations (Tr. 517). The ALJ afforded the opinion little weight, finding the record as
a whole to be inconsistent with the limitations adopted by Dr. Hemba, that Dr. Hemba’s own
treatment records did not support the opinion, that Dr. Hemba is not a specialist in the mental
healthcare field, and that Dr. Hemba primarily treated the Plaintiff for her physical conditions
(Tr. 17-18). Indeed, an ALJ may properly discount a physician’s opinion when it is not
consistent with the record and relates to matters outside the physician’s field. Wagner v. Astrue,
499 F.3d 842, 850 (8th Cir. 2007) (an ALJ may properly discount a treating physician’s opinion
when it is “inconsistent with the record as a whole”); Guilliams v. Barnhart, 393 F.3d 798, 803
(8th Cir. 2005) ( (“[O]pinions of specialists on issues within their areas of expertise are
“generally” entitled to more weight than the opinions of non-specialists); Singh, 222 F.3d at 452
(“The Commissioner is encouraged to give more weight to the opinion of a specialist about
medical issues related to his or her area of specialty than to the opinion of a source who is not a
specialist.”). Further, a physician’s opinion that a claimant is incapable of gainful employment is
often not entitled to significant weight. Fentress v. Berryhill, 854 F.3d 1016, 1020 (8th Cir.
2017).

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Fifth, the ALJ also reviewed and properly considered the Third Party Adult Function
Report dated April 18, 2014, submitted by Plaintiff’s son6 (Tr 18, 210-17). The ALJ found that
the report could not be given significant weight because Plaintiff’s son cannot be considered a
disinterested third party and his statements, like those of Plaintiff, are not consistent with the
preponderance of the opinions and observations by medical doctors in this case (Tr. 18).
Specifically, the ALJ notes that Plaintiff’s son indicated that Plaintiff could only lift 10 pounds,
cannot walk more than 10 minutes, and needs to rest after five minutes but that Plaintiff’s social
worker encouraged Plaintiff to dance and move (Tr. 18, 215, 445, 456). See Black v. Apfel, 143
F.3d 383, 387 (8th Cir. 2006) (an ALJ may discount corroborating testimony on the same basis
used to discredit a claimant’s testimony).
In conclusion, the Court finds that the ALJ’s RFC determination is consistent with the
relevant evidence of record including the objective medical evidence, the observations of
medical providers, as well as the evaluation of Plaintiff’s subjective complaints.
C. Vocational Expert
Finally, Plaintiff asserts that the ALJ failed to resolve inconsistencies within the
vocational expert’s testimony (Doc. 23 at 2-5). Vocational Expert Delores Gonzalez (“Ms.
Gonzalez”) testified at Plaintiff’s June 13, 2016 hearing before the ALJ (Tr. 63-72). At the
hearing, when asked whether her answer that Plaintiff’s could return to her prior work as a
garment folder, night cleaner and hand packager would change if Plaintiff could not
communicate in English, Ms. Gonzalez responded:
The jobs that I cited would not require her to read any – anything written. It’s possible
that she may have difficulty, you know, talking with supervisors or coworkers. But for
The ALJ incorrectly indicates that the form is completed by Plaintiff’s daughter. The Court
will not penalize the ALJ for an inadvertent mistake. Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir.
2008) (“[A]n arguable deficiency in opinion-writing technique does not require us to set aside an
administrative finding when that deficiency had no bearing on the outcome.”).
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the most part, the jobs that I cited would allow for the person to not have to perform work
that would be – require talking.
(Tr. 70). On May 9, 2017, nearly a year later, Ms. Gonzalez answered a set of interrogatories
regarding this matter (Tr. 293-300). Specifically, when asked in the interrogatories if Plaintiff
could perform any of her past work if she was not able to communicate in English, Ms. Gonzalez
answered in the affirmative and explained: “All past unskilled jobs could be performed.
However, the job as a sewing machine operator is skilled and would be precluded. The other
jobs would require occasional interaction with supervisors and coworkers” (Tr. 294). Both at the
hearing and in her answers to the interrogatories, Ms. Gonzalez states that there was not any
conflict between her testimony and the DOT and/or SCO (Tr. 69, 295). Relying, in part, on the
Vocational Expert’s testimony, the ALJ found that Plaintiff could return to her past relevant
work as a garment folder, night cleaner and hand packager (Tr. 18). Alternatively, the ALJ
determined that there are other jobs that exist in significant numbers in the national economy that
Plaintiff also can perform including cleaner II, salvage laborer, and housekeeping cleaner (Tr.
19). In so doing, the ALJ considered the Plaintiff’s age, education, work experience, and RFC
(Id.). In relevant part, the ALJ found Plaintiff to have “at least a high school education” and that
she “is able to communicate in English” (Id.).
The Court finds that substantial evidence supports the ALJ’s determination at step four
that Plaintiff could return to her past work. Even if the ALJ erred in her conclusion that Plaintiff
had at least a high school education and could communicate in English, the Court finds such an
error to be harmless. Byes v. Astrue, 687 F.3d 913, 917 (8th Cir. 2012) (noting that an error is
harmless unless the ALJ would have decided the case differently). Under the Commissioner’s
regulations, a claimant’s grade level and ability to communicate in English are educational
factors to be addressed at Step 5 of the sequential inquiry. 20 C.F.R. §§ 404.1564(b),

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416.964(b); see also Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010) (referring to the
claimant’s age, education, and relevant work experience as a vocational factor and not a medical
factor). Here, the ALJ determined at step four that Plaintiff could return to her past work and
that, therefore, a finding of not disabled was appropriate. It is well settled law that the five-step
inquiry ends once the ALJ determines at step four that the claimant can return to her past
relevant work. Goff, 421 F.3d at 790 (“If a claimant fails to meet the criteria at any step in the
evaluation of disability, the process ends and the claimant is determined to be not disabled.”).
To the extent Plaintiff asserts that the vocational expert’s testimony was inconsistent, the
testimony of a vocational expert is not required when the ALJ makes a finding of not disabled at
step four of the sequential evaluation process. Hill v. Colvin, 753 F.3d 798, 801 (8th Cir. 2014)
(finding vocational expert not to be required at step four of the process). Regardless, upon
review of the vocational expert’s testimony, the Court does not find a conflict between her oral
testimony and her response to a similar interrogatory. In her hearing testimony, Ms. Gonzalez
addressed Plaintiff’s inability to communicate in English and indicated that some of Plaintiff’s
prior work may be precluded because, in those jobs, Plaintiff would need to interact in English
with her supervisors or co-workers. Ms. Gonzalez also stated that many of the jobs she cited
would not require this interaction. Ms. Gonzalez’s response to the interrogatory clarifies her
testimony by explicitly stating that Plaintiff could perform all past unskilled jobs but not those
other jobs requiring occasional interaction with supervisors and coworkers. Therefore, the Court
finds the ALJ’s determination that Plaintiff could return to her past work is supported by
substantial evidence and is consistent with the Regulations and case law.

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V. CONCLUSION
For the reasons set forth above, the Court finds that substantial evidence on the record as
a whole supports the Commissioner’s decision that Plaintiff is not disabled.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and
Plaintiff’s Complaint is DISMISSED, with prejudice.
A separate judgment shall be entered incorporating this Memorandum and Order.
Dated this 30th day of August, 2019.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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