Van Cleave v. Astrue

Filing 13

MEMORANDUM OPINION AND ORDER affirming decision of Commissioner. Signed by U.S. District Judge Karen E. Schreier on 2/20/2014. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
TONI ANN VAN CLEAVE,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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CIV. 12-4202-KES

MEMORANDUM OPINION AND
ORDER AFFIRMING
DECISION OF COMMISSIONER

Plaintiff, Toni Ann Van Cleave, seeks review of the decision of the
Commissioner of Social Security denying her claims for disability insurance
benefits and supplemental security income.1 The Commissioner opposes the
motion and requests that the court affirm the decision. The court affirms.
PROCEDURAL HISTORY
In June of 2009, Van Cleave applied for disability insurance benefits and
supplemental security income. AR 119-31.2 The Social Security Administration
denied Van Cleave’s application. AR 62-64. Van Cleave requested
reconsideration, which was subsequently denied. AR 67-71. Van Cleave next

1

Under Fed. R. Civ. P. 25(d), Carolyn W. Colvin is automatically
substituted for Michael J. Astrue. This action survives the substitution. 42
U.S.C. § 405(g).
2

record.

All citations to “AR” refer to the appropriate page of the administrative

requested a hearing before an Administrative Law Judge (ALJ). AR 72-73. After
the hearing, the ALJ issued a decision finding that Van Cleave was not entitled
to benefits. AR 10-29. The Appeals Council denied Van Cleave’s request to
review the ALJ’s decision. AR 1-3. Subsequently, Van Cleave requested that
this court review the Commissioner’s unfavorable decision. Docket 1.
FACTS
Van Cleave was born on December 23, 1970. Van Cleave completed high
school, but states that she has a learning disability related to her reading
comprehension.3 AR 37. Van Cleave has four children and has been married to
her husband since 1999. AR 38-39.
Van Cleave has an extensive but sporadic work history, primarily
consisting of service industry positions such as waitress, cook, and cashier. AR
184-202. Most recently, she held a telemarketing position at Stream
International, Inc. In 2007, Van Cleave received total wages of $21,523.21 from
Stream, and from January to September 2008 she made $18,556.94. AR 151.
She was terminated from Stream on September 24, 2008, and has not worked
since then. AR 15. Currently, Van Cleave receives occasional child support
payments for her two older children and food stamps, and she relies on her
husband’s social security retirement income. AR 239.

3

Van Cleave does not claim to be disabled as a result of this learning
disability, and there is no evidence in the record related to her learning
disability or any functional limitations stemming from it.
2

Van Cleave has a history of fibromyalgia4 and fatigue, and has taken
various pain medications to relieve her symptoms. AR 47. Her primary care
provider is Karen Pearson, a certified physician assistant. Van Cleave also
alleges that she has back pain and a tailbone injury from a fall in 1991. AR 48,
267. X-rays of Van Cleave’s spine show mild degenerative joint disease. AR
270, 271. Additionally, Van Cleave reports struggling with depression, see AR
276, 285, and memory issues. AR 207-08. Van Cleave previously applied for
social security disability benefits in 1995, 1997, and 2003. AR 46.
ALJ DECISION
After a telephonic hearing in which Van Cleave was represented by
counsel, the ALJ issued an unfavorable decision. The ALJ applied the five-step
process for determining disability. See 20 C.F.R. § 404.1520. In doing so, the
ALJ found that Van Cleave had not engaged in substantial gainful activity
since September 24, 2008. The ALJ found that Van Cleave’s fibromyalgia was
severe within the meaning of the regulations, but that Van Cleave’s medically
determinable impairments of depression and back and neck pain were
nonsevere. AR 15-17. After determining that Van Cleave’s fibromyalgia did not
meet or equal a listed impairment, the ALJ concluded that Van Cleave had the
residual function capacity (RFC) to perform light work with some limitations.

4

Fibromyalgia is a “syndrome of chronic widespread soft-tissue pain
accompanied by weakness, fatigue, and sleep disturbances; the cause is
unknown.” Stedman’s Medical Dictionary 725 (28th ed. 2006).
3

AR 17. In making the RFC determination, the ALJ found that Van Cleave’s
statements regarding the limiting effects of her symptoms were not entirely
credible. AR 18-22. Based on her RFC, the ALJ determined Van Cleave could
perform her past relevant work, or alternatively that she could perform other
jobs existing in the national economy. AR 22-24. Accordingly, the ALJ
concluded that Van Cleave was not disabled. AR 24.
STANDARD OF REVIEW
The court must uphold the ALJ’s decision if it is supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g) (“The findings
of the Commissioner as to any fact, if supported by substantial evidence, shall
be conclusive . . . .”); Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011).
“Substantial evidence is ‘less than a preponderance, but is enough that a
reasonable mind would find it adequate to support the Commissioner's
conclusion.’ ” Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting
Maresh v. Barnhart, 438 F.3d 897, 898 (8th Cir. 2006)). The court considers
evidence that both supports and detracts from the ALJ’s decision. Moore v.
Astrue, 623 F.3d 599, 605 (8th Cir. 2010). If the Commissioner’s decision is
supported by substantial evidence in the record as a whole, the court may not
reverse it merely because substantial evidence also exists in the record that
would support a contrary position or because the court would have determined

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the case differently. Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002)
(citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).
In determining whether the Commissioner’s decision is supported by
substantial evidence in the record as a whole, the court reviews the entire
administrative record and considers six factors: (1) the ALJ’s credibility
determinations; (2) the claimant’s vocational factors; (3) medical evidence from
treating and consulting physicians; (4) the claimant’s subjective complaints
relating to activities and impairments; (5) any third-party corroboration of
claimant’s impairments; and (6) a vocational expert’s testimony based on proper
hypothetical questions setting forth the claimant’s impairment(s). Stewart v.
Sec’y of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (citing
Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989)).
The court also reviews the Commissioner’s decision to determine if an
error of law has been committed, which may be a procedural error, the use of
an erroneous legal standard, or an incorrect application of the law. Collins v.
Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (citations omitted). Issues of law are
reviewed de novo with deference accorded to the Commissioner’s construction of
the Social Security Act. Id. (citing Juszczyk v. Astrue, 542 F.3d 626, 633 (8th
Cir. 2008)).

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DISCUSSION
Van Cleave first asserts that the ALJ erred by not considering her
impairments in combination with each other.5 Second, Van Cleave argues that
the ALJ erred in determining her RFC because (1) the ALJ improperly
determined that her subjective complaints of pain were not fully credible; (2) the
ALJ did not properly weigh her husband’s statement; and (3) the ALJ gave too
much weight to state agency physicians and not enough weight to Van Cleave’s
treating physician assistants. Finally, Van Cleave contends that the ALJ’s
hypothetical questions to the vocational expert (VE) were defective because they
failed to account for her subjective symptoms.
I.

Step Two
At step two, Van Cleave must establish whether she has a medically

determinable physical or mental impairment that is severe. 20 C.F.R.
§ 404.1520(a)(4)(ii); Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007) (“It is the
claimant’s burden to establish that [her] impairment or combination of
impairments are severe.”) (citation omitted). A severe impairment must
“significantly” limit the claimant’s physical or mental ability to do basic work
activities, 20 C.F.R. § 404.1521(a), such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, handling, seeing, hearing, speaking,

5

It is unclear at which step Van Cleave contends this alleged error
occurred. See Docket 10 at 10. Because Van Cleave’s discussion refers to the
ALJ’s step two decision, the court will address this argument at step two.
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understanding, remembering simple instructions, using judgment, responding
appropriately to usual work situations, and dealing with changes in a routine
work setting. 20 C.F.R. § 404.1521(b)(1)-(6).
The ALJ found that Van Cleave’s fibromyalgia was a severe medically
determinable impairment,6 but that Van Cleave’s depression and degenerative
joint disease were nonsevere. AR 15-17. The ALJ determined that Van Cleave’s
depression was nonsevere when evaluated using the four functional areas set
out in the regulations. See 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.00C
(assessing functional limitations of medically determinable mental impairments
using the “paragraph B” criteria: activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation). The ALJ
also considered Van Cleave’s degenerative joint disease, but based on x-rays
and functional tests showing only mild limitations, the ALJ determined Van
Cleave’s back and neck pain to be nonsevere. AR 17. Van Cleave has not made
any argument that the ALJ erred in determining that her depression and
degenerative joint disease are nonsevere, and those determinations are
supported by substantial evidence in the record as a whole. Therefore, the ALJ

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Van Cleave mistakenly asserts that “[t]he Claimant’s fibromyalgia was
then analyzed by the ALJ and dismisses [sic] that as being non-severe.” Docket
10 at 10. Although the ALJ found that Van Cleave’s fibromyalgia did not meet
or equal a listed impairment, AR 17, the ALJ did find Van Cleave’s fibromyalgia
to be a severe impairment. AR 15.
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did not err at step two in determining that, while Van Cleave’s fibromyalgia was
a severe impairment, her depression and degenerative joint disease were not.
Van Cleave contends the ALJ erred by not considering her impairments in
combination with each other. But Van Cleave does not show how that would
have changed the ALJ’s conclusion at step two, nor does Van Cleave show how
the alleged failure led to error at any other step.7 Van Cleave does not present
any argument or point to any evidence in the record showing that either her
depression or her mild degenerative joint disease, in combination with her
fibromyalgia, would limit her ability to work more than she was limited by her
fibromyalgia. See Banks v. Massanari, 258 F.3d 820, 825 (8th Cir. 2001)
(evaluating a combination of impairments by asking if “these additional
disabilities . . . significantly limit [the claimant’s] ability to work”). There are no
symptoms of depression present in the record, and any back pain stemming
from her nonsevere degenerative joint disease would not create any additional
limitation on Van Cleave’s ability to work that is not already encompassed by
her severe fibromyalgia. Based on the record, the ALJ did not err at step two.

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Specifically, Van Cleave does not argue that her combination of
impairments would meet or equal a listed impairment at step three, leading to
a presumption of disability. Additionally, the ALJ discussed all of Van Cleave’s
impairments in the RFC determination.
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II.

RFC
Before an ALJ moves to step four, the ALJ must determine the claimant’s

RFC. 20 C.F.R. § 404.1520(a)(4). A claimant’s RFC “is the most [she] can still do
[in a work setting] despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1). The
RFC assessment is an indication of what the claimant can do on a “regular and
continuing basis” given the claimant’s disability. 20 C.F.R. § 404.1545(b). “ ‘The
ALJ should determine a claimant’s RFC based on all the relevant evidence,
including the medical records, observations of treating physicians and others,
and an individual’s own description of his limitations.’ ” Lacroix v. Barnhart, 465
F.3d 881, 887 (8th Cir. 2006) (quoting Strongson v. Barnhart, 361 F.3d 1066,
1070 (8th Cir. 2004)). The RFC must include the limitations from all medically
determinable impairments, regardless of whether they are considered severe.
SSR 96-8p (“In assessing RFC, the adjudicator must consider limitations and
restrictions imposed by all of an individual’s impairments, even those that are
not ‘severe.’ ”).
In determining Van Cleave’s RFC, the ALJ considered Van Cleave’s injury
to her coccyx and sacrum after falling on ice in 1991, fibromyalgia, depression,
pain in her neck and back, fatigue, frequent headaches, and muscle pain and
tingling.8 AR 18. The ALJ concluded that Van Cleave “has the [RFC] to perform

8

To the extent that Van Cleave’s step two argument regarding the ALJ’s
alleged failure to consider her impairments in combination with each other
could lead to an error at the RFC stage, the ALJ appears to have considered all
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light work . . . except that she can only occasionally climb, balance, stoop,
kneel, crouch, or crawl. Furthermore, she should avoid concentrated exposure
to cold, heat and hazards.” AR 17.
A.

Credibility

Van Cleave argues that the ALJ did not properly assess her credibility
with respect to her subjective complaints of pain. Docket 10 at 11-15. “[W]hen
evaluating a claimant’s credibility, in addition to considering the absence of
objective medical evidence to support complaints of pain, an ALJ should
consider a claimant’s reported daily activities, the duration, frequency and
intensity of his or her pain, precipitating and aggravating factors, medication,
and functional restrictions.” Steed v. Astrue, 524 F.3d 872, 875 n.4 (8th Cir.
2008) (citing Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984)); see 20 C.F.R.
§ 404.1529(c)(3). “The ALJ is not required to discuss methodically each Polaski
consideration, so long as [the ALJ] acknowledged and examined those
considerations before discounting [Van Cleave’s] subjective complaints.” Id. at
876 (internal quotation omitted). An ALJ must make express credibility
determinations detailing reasons for discounting a claimant’s subjective
complaints of pain. Dipple v. Astrue, 601 F.3d 833, 837 (8th Cir. 2010). An
ALJ’s credibility determination is entitled to deference because the ALJ is in a

of her alleged symptoms from her impairments in the RFC discussion, and Van
Cleave does not point to any impairments that were left out of the RFC.
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better position than a reviewing court to gauge credibility. Travis v. Astrue, 477
F.3d 1037, 1042 (8th Cir. 2007).
The ALJ stated that “[Van Cleave’s] medically determinable impairments
could reasonably be expected to cause the alleged symptoms; however, [Van
Cleave’s] statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible . . . .” AR 18. The ALJ observed that the
objective medical evidence was not consistent with respect to Van Cleave’s pain.
AR 18-19 (noting that, although Van Cleave was at times diagnosed with pain or
physical limitations, at other times she registered no pain and normal range of
motion, sensitivity, and strength). Next, the ALJ addressed Van Cleave’s
activities of daily living and found them inconsistent with her allegations of
disabling pain. AR 19 (referencing evidence that Van Cleave was involved in
scout meetings, family events, bowling, fishing, yard work, daily walks, driving a
car and a boat, and daily computer use). Additionally, the ALJ looked at Van
Cleave’s treatment history, and concluded that there was evidence showing Van
Cleave had not been compliant when taking her medication, but that when she
did take her medication, it was successful in controlling her symptoms. AR 1920. The ability to successfully control pain with medication can be inconsistent
with an allegation of disabling pain. Moore v. Astrue, 572 F.3d 520, 525 (8th Cir.
2009). If an impairment can be controlled through treatment or medication, it
cannot be considered disabling. Id. (citing Kisling v. Chater, 105 F.3d 1255,

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1257 (8th Cir. 1997)). The ALJ also noted that Van Cleave did not see a
specialist at any time. AR 19.
Of particular concern to the ALJ were a number of statements made by
medical professionals who interacted with Van Cleave, which the ALJ concluded
undermined Van Cleave’s credibility with respect to the disabling nature of her
pain. The ALJ noted that one of Van Cleave’s physical therapists reported that
he questioned Van Cleave’s motivation to get better, that Van Cleave made it
clear that her goal was to receive disability benefits, and that physical therapy
was “simply one of the steps that she has to complete” to get benefits. AR 20,
324. Similarly, the ALJ discussed that Van Cleave did not feel she needed to be
seen every month, but that her lawyer advised her to make more appointments.
AR 20. The ALJ also discussed the results of Van Cleave’s functional capacity
evaluation, in which Terry Nelson, a physical therapist, found that Van Cleave’s
range of motion improved during distraction activities, indicating that Van
Cleave was trying to artificially control the test results. AR 19, 373-75.
Combined with Van Cleave’s past applications for benefits, the ALJ concluded
that Van Cleave’s “motivation for seeking treatment may have less to do with
improving her condition and more to do with obtaining benefits.” AR 20.
With respect to Van Cleave’s work history, the ALJ found that Van Cleave
had been experiencing symptoms at approximately the same level of severity
prior to September 24, 2008, but that her symptoms had not prevented her

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from working in the past. Id. Because of inconsistent statements in the record,
the ALJ also questioned whether her termination from Stream was actually due
to drowsiness as a side effect of her medication. Id. Based on consideration of
the objective medical evidence, Van Cleave’s daily activities, the effectiveness
and side effects of Van Cleave’s medication, Van Cleave’s physical therapy, Van
Cleave’s work history, and statements from medical professionals questioning
the veracity of Van Cleave’s disability, the ALJ concluded that Van Cleave’s
allegations of pain were not fully credible.
Van Cleave contends that the ALJ’s credibility determination was flawed
because the ALJ “cherry-picked the good days out of the medical records.”
Docket 12 at 2 (citing SSR 12-2p, which emphasizes a longitudinal view of
fibromyalgia because symptoms can “wax and wane”). Specifically, Van Cleave
maintains that she attended but did not participate in activities such as
bowling, cross-country skiing, or boating, and that the other determinations by
the ALJ misinterpret the record to make her daily activities seem more
significant. Van Cleave also takes issue with the ALJ’s reliance on certain
elements of Van Cleave’s daily activities, such as sewing, playing cards, and
visiting with friends, because that information was provided in July of 2009.
But even if Van Cleave did not ski or bowl herself, going to those activities
reveals a higher level of daily activity than she claims to have in her disability
application. The record contains instances in which Van Cleave or others stated

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she was sore or fatigued, but that information does not compel the conclusion
that Van Cleave’s subjective complaints of disabling pain are fully credible.
Overall, the ALJ’s findings about Van Cleave’s daily activities are supported by
multiple sources throughout the record.
Van Cleave argues that the ALJ improperly viewed Van Cleave’s
conflicting statements about her termination from Stream as evidence that Van
Cleave lacked credibility. The ALJ observed that Van Cleave did not mention
that her medication made her fall asleep with Pearson, nor did she request any
change of medication from Jeff Schild, another physician assistant from whom
she received treatment. Failure to mention such a side effect to a treating
medical professional can fairly be interpreted as a sign that a claimant’s current
statements about that side effect are not fully credible.
Finally, Van Cleave contends that the ALJ improperly relied on a lack of
objective evidence for an impairment, fibromyalgia, that is not easy to support
with objective medical evidence. Docket 10 at 14-15. Contrary to Van Cleave’s
contention, the ALJ did not exclusively rely on a lack of objective medical
findings to reach the conclusion that Van Cleave was not disabled. The ALJ
noted that frequently, Van Cleave showed only mild limitation in range of
motion tests, that she was able to sense light touch on her extremities, that her
motion, gait, and other movements were frequently observed to be normal, and
that she showed no signs of pain at the end of physical therapy. AR 19. This

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evidence is inconsistent with Van Cleave’s claims of disabling pain and was
properly considered by the ALJ as one element in evaluating Van Cleave’s
credibility.
Although the ALJ did not explicitly mention the Polaski factors, the
analysis applied by the ALJ included a number of those factors, and is
supported by substantial evidence in the record as a whole. Van Cleave has not
shown that the ALJ erred in evaluating her credibility with respect to her
subjective complaints of disabling pain.
B.

Third-Party Evidence

Van Cleave argues that the ALJ did not make an express credibility
finding when discounting the corroborating statement supplied by her husband,
and that this failure amounted to reversible error. Docket 10 at 15. With respect
to the information provided by Edward Van Cleave, the ALJ wrote:
Although this statement is from a non-medical source, it has been
considered in accordance with Social Security Ruling 06-03p to
show the severity of the individual’s impairments and how the
severity may affect the claimant’s ability to function. The statement
in question does corroborate the claimant’s testimony regarding
daily activities and limitations; however, the undersigned gives it
little weight as it is cumulative evidence outweighed by other
medical and non-medical evidence as discussed above, and does
not support the limitations alleged.
AR 22. When lay witness testimony merely corroborates a claimant’s testimony
regarding activities, and conflicts with the medical evidence, the ALJ is not
required to make credibility findings before discounting the lay witness

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testimony. Ostronski v. Chater, 94 F.3d 413, 419 (8th Cir. 1996). Edward Van
Cleave’s statement is merely corroborative; in fact, it is virtually identical to the
function report submitted by Van Cleave herself. Compare AR 176-83 (Edward
Van Cleave) with AR 203-11 (Toni Ann Van Cleave). The ALJ discussed why the
function report submitted by Van Cleave herself conflicted with the medical and
other evidence in the record. Accordingly, the ALJ was not required to make an
explicit credibility finding before giving little weight to Edward Van Cleave’s
corroborating statement.
C.

Medical Source Weight

An ALJ must evaluate every medical opinion, regardless of its source. 20
C.F.R. § 404.1527(c). Treating source medical opinions can be entitled to
controlling weight, and if a treating source medical opinion is not given
controlling weight, an ALJ must give good reasons for the weight given to that
opinion. 20 C.F.R. § 404.1527(c)(2). In determining the weight to give a medical
opinion, an ALJ should consider, among other factors, the length of the
treatment relationship and the frequency of examination, the nature and extent
of the treatment relationship, the supportability of the opinion, the consistency
of the opinion, and the specialization of the source. 20 C.F.R. § 404.1527(c)(2)(6).
“Medical opinions are statements from physicians and psychologists or
other acceptable medical sources . . . .” 20 C.F.R. § 404.1527(a)(2) (emphasis

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added). “Acceptable medical sources are (1) Licensed physicians (medical or
osteopathic doctors); (2) Licensed or certified psychologists . . . ; (3) Licensed
optometrists . . . ; (4) Licensed podiatrists . . . ; and (5) Qualified speechlanguage pathologists . . . .” 20 C.F.R. § 404.1513(a)(1)-(5). In contrast, other
medical sources may show the severity of impairments and the impact of
impairments on the ability to work, but cannot establish an impairment. 20
C.F.R. § 404.1513(d). Other sources include medical sources that do not meet
the definition of an acceptable medical source, including physician assistants
and therapists. 20 C.F.R. § 404.1513(d)(1).
Based on the medical records, Van Cleave had the most extensive
treatment relationship with Pearson. See AR 361 (stating that Pearson saw Van
Cleave beginning in 2001 and in 2008 for fibromyalgia). Pearson is a certified
physician assistant, see AR 354, qualifying her as an other medical source.
Schild is also a certified physician assistant. See, e.g., AR 357. His treatment
relationship with Van Cleave is not as extensive as Pearson’s, and began in
January 2011. Schild is not qualified to give a medical opinion as an acceptable
medical source and instead qualifies as an other medical source.
Beginning in January 2010, Van Cleave received physical therapy at
CNOS, a clinic in Dakota Dunes, South Dakota, on Pearson’s referral. AR 315329. Van Cleave’s records from CNOS are signed by Kip Chesmore and Jennifer
Davis, both physical therapists. Van Cleave also received a functional capacity

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evaluation on August 4, 2011, from Terry Nelson. Nelson is also a physical
therapist. AR 372. As with physician assistants, physical therapists are not
acceptable medical sources, but do qualify as other medical sources.
Van Cleave was examined one time by Thomas Olson, a physician who
performed the examination for South Dakota Disability Determination Services.
AR 267-69. Van Cleave’s file was also reviewed by Doctors Whittle and
Entwistle, both state agency physicians. AR 287-94, 311. Dr. Olson,
Dr. Whittle, and Dr. Entwistle are the only physicians with opinions on Van
Cleave’s physical impairments in the record. Doctors Olson and Whittle
diagnosed Van Cleave with fibromyalgia but opined that she could perform light
work. AR 268, 287. Dr. Entwistle affirmed Dr. Whittle’s assessment. AR 311.
Van Cleave claims the ALJ erred when determining her RFC by giving too
much weight to the opinions of the state agency medical experts and too little
weight to the opinions of Pearson and Schild. Docket 10 at 16-22. Although the
opinions of Pearson and Schild are useful in developing a picture of Van
Cleave’s impairments over time, they are not qualified to provide acceptable
medical opinions. In fact, Pearson specifically stated that she was not
comfortable with or qualified to complete the forms sent to her as part of Van
Cleave’s benefits application. AR 354. Because Pearson and Schild are not
acceptable medical sources, their opinions are not entitled to controlling weight.

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Van Cleave also asserts that the ALJ did not properly weigh the opinions
of Pearson and Schild on the issue of her pain and its impact on her ability to
work. All of the medical opinions in the record recognize that Van Cleave suffers
from fibromyalgia. The ALJ gave great weight to the opinions of the state agency
physicians because the ALJ determined those opinions were consistent with the
substantial evidence in the record and the findings of Dr. Olson. AR 21. The ALJ
also gave some weight to the functional capacity evaluations of Dr. Olson and
Nelson because they were consistent with the opinions of the state agency
physicians, each other, and the substantial evidence in the record. AR 21-22.
In determining Van Cleave’s credibility with respect to her disabling pain,
the ALJ considered the records provided by both Pearson and Schild. AR 18-20.
Those records form the basis for part of the ALJ’s discussion on Van Cleave’s
activities of daily living. The ALJ also considered the observations of Pearson
and Schild with respect to Van Cleave’s pain, range of motion, and functioning.
Additionally, the ALJ noted that neither Pearson nor Schild imposed any
functional restrictions on Van Cleave that would be inconsistent with the ability
to perform a range of light work. AR 22. The ALJ properly considered the
opinions of Pearson and Schild, together with the other evidence in the record
and the additional medical opinions, in determining the severity of Van Cleave’s
pain. The ALJ’s RFC determination is based on properly weighted opinion and is
supported by substantial evidence in the record as a whole.

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III.

Step Five
Van Cleave asserts that the ALJ formulated improper hypothetical

questions for the VE at step five, which cannot constitute the substantial
evidence needed to carry the Commissioner’s burden at that step. Van Cleave
does not dispute the ALJ’s finding that she is capable of performing her past
relevant work as a cashier or telephone solicitor based on her RFC. AR 22.
Because the court has concluded that the ALJ did not err in determining that
Van Cleave has the RFC to perform her past relevant work, and Van Cleave does
not challenge the ALJ’s decision at step four, Van Cleave is not disabled and the
ALJ was not required to move on to step five. See 20 C.F.R. § 404.1520(a)(4)(iv)
(“If you can still do your past relevant work, we will find that you are not
disabled.”); 20 C.F.R. § 404.1560(b). But if the court were to reach that issue, it
finds that the ALJ properly discounted Van Cleave’s subjective complaints of
pain based on her lack of credibility. Therefore, the ALJ’s hypothetical questions
were not defective as Van Cleave claims.
CONCLUSION
The ALJ’s decision is supported by substantial evidence in the record as a
whole. The ALJ did not err in considering Van Cleave’s impairments, assessing
Van Cleave’s credibility, weighing the statements from Van Cleave’s husband or
medical providers, or formulating hypothetical questions for the VE.
Accordingly, it is

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ORDERED that the Commissioner’s decision denying Van Cleave’s claims
for benefits is affirmed.
Dated February 20, 2014.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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