Rumzis v. Berryhill
Filing
26
MEMORANDUM OPINION AND ORDER Affirming the Decision of the Commissioner. Signed by U.S. District Judge Karen E. Schreier on 1/23/19. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
GINGER GLO RUMZIS,
4:18-CV-04031-KES
Plaintiff,
vs.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
MEMORANDUM OPINION AND
ORDER AFFIRMING THE DECISION
OF THE COMMISSIONER
Defendant.
Plaintiff, Ginger Glo Rumzis, seeks review of the decision of the
Commissioner of the Social Security Administration denying her claim for
disability insurance benefits (SSDI) under Title II of the Social Security Act, 42
U.S.C. § 423. Docket 18. The Commissioner opposes the motion and urges the
court to affirm the denial of benefits. Docket 20. For the following reasons, the
court affirms the decision of the Commissioner.
PROCEDURAL HISTORY
Rumzis filed an application for SSDI benefits on May 12, 2014, alleging
disability since October 19, 2013. AR 240. The Commissioner denied her claim
initially on October 9, 2014, and upon reconsideration on April 8, 2015. AR
146, 128. Rumzis then appeared with counsel before Administrative Law Judge
(ALJ) Denzel R. Busick at an administrative hearing on January 27, 2017. See
AR 71 (transcript of hearing). The ALJ issued an opinion affirming the denial of
benefits on March 10, 2017. AR 20. The Appeals Council denied Rumzis’
request for review on January 16, 2018. AR 1. Thus, Rumzis’ appeal of the
Commissioner’s final decision is properly before the court under 42 U.S.C.
§ 405(g).
FACTUAL BACKGROUND
Rumzis was born on May 8, 1973. AR 114. She was 40 years old on the
alleged onset date, and she lived in Arizona when she initially applied for SSDI.
AR 115. Rumzis completed a Bachelor of Arts in music education and has
received an LLB from Nottingham Trent University. AR 380. She has worked
several jobs in music, including as an elementary band director, choir director,
and music teacher, and she also spent time working as a paralegal. AR 125.
Rumzis has a history of several medical conditions, including a herniated
disc, tear, and canal stenosis in her neck, depression, anxiety, stomach issues,
scoliosis, right knee damage, and neck pain related to a prior car accident. AR
295. She presented to the emergency room on October 8, 2013, complaining of
weakness and dizziness that had worsened over three weeks. AR 424. She had
a Head/Brain CT scan, which showed no acute intracranial abnormalities. AR
423. Rumzis again presented to the emergency room on November 20, 2013,
complaining of weakness and dizziness after a chiropractor appointment. AR
417. Following a CT scan of her cervical spine that day, Dr. Ron Shinar noted
mild degenerative changes at C5-6 and mild levoconvex scoliosis. AR 415. She
also had an MRI of her cervical spine on February 21, 2014, and the radiologist
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noted a “[t]ear of the posterior annulus with midline posterior disc herniation
at C5-C6 impinging on the ventral aspect of the spinal cord resulting in mild
central canal stenosis.” AR 452. On February 24, 2014, Rumzis presented to
the Pain Management Associates at Hedley Orthopaedics Institute in Arizona
for her neck and upper back pain. AR 430. She rated her pain at a 2/10 with
medication, but an 8/10 without medication. Id. Kirk Bowden, DO, diagnosed
her with cervical spondylosis, brachial neuritis, and cervicalgia. AR 432.
Rumzis received monthly treatment for her ongoing neck pain at Heavens
Medical PLC in Arizona in 2014. See AR 499-519. Treatment notes from Dr.
Jason Heavens show that her medical providers managed her pain medication,
directed her to continue with her chiropractic care and physical therapy, and
discussed her cortisone injections. AR 500. Rumzis also reported that her neck
pain increased her anxiety, she suffered from nausea and other side effects due
to her medication, and she fatigued easily. AR 501, 503. At times, it was noted
that physical therapy decreased her pain and increased her mobility. AR 505.
Rumzis received chiropractic care for her neck and upper back issues
many times in 2013 and 2014. See AR 434-498. She also participated in
several physical therapy sessions at Ideal Physical Therapy in Arizona in 2014.
See AR 521-573. Physical therapy notes indicate that Rumzis tolerated her
exercises, felt improvement in her neck pain symptoms following therapy
sessions, and benefited overall. Id. In September 2014, Rumzis had a lipoma
removed from her upper back after her providers suggested removal of the
small mass in order to potentially alleviate some of her symptoms. AR 585.
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As to psychological care, Rumzis saw Dr. Jessica Leclerc, a clinical
psychologist in Arizona, in 2014. AR 602. Dr. Leclerc diagnosed her with panic
disorder and an unspecified depressive disorder. AR 606. Dr. Leclerc noted that
Rumzis did not exhibit problems with understanding, concentration, or
persistence, and she scored well on a mini-mental status exam that tested her
memory. AR 605-607.
In 2015 and 2016, she saw Dr. Shawn Culey at Avera in Sioux Falls for
her neurological symptoms and low blood pressure. AR 708-750. After
discussing many of Rumzis’ labs and testing results, Dr. Culey recommended
Rumzis to see Dr. Todd Zimprich, a neurologist in Sioux Falls, for her
lightheadedness and fainting. AR 724. She underwent an autonomic screen
test at his direction, but Dr. Zimprich noted the test did not give a “clear POTS
diagnosis.” AR 703. She also permanently moved back to South Dakota at
some point in 2016, and Dr. Culey’s notes indicate that Rumzis felt somewhat
better living in South Dakota. AR 743.
ADMINISTRATIVE HEARING
During the administrative hearing, the ALJ heard testimony from
Rumzis; Mercedes Lodnel, the daughter of Rumzis; and Frank Samlaska, a
vocational expert. AR 73. Rumzis, represented by counsel at the hearing,
testified about her education, work experience, and the difficulties she has had
while working or around the house. She testified that she has a Bachelor of
Arts in music education AR 78. Rumzis has been a music teacher, band
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director, and a choral director. AR 100. She also worked as a paralegal at a law
firm while attending law school. AR 101-102.
Rumzis testified that she stopped working in September or October of
2013, after she experienced her first seizure and began having dizzy spells
while at school. AR 78-80. She experienced seizures or dizzy spells two or three
times a week. AR 81. Rumzis testified that her episodes have been less frequent
or less severe since she moved back to South Dakota from Arizona, attributing
the improvement to the colder climate here. AR 82. Additionally, she suffers
from a dizziness sensation every day. AR 83.
Rumzis also testified that she has experienced physical pain in her neck
and her mid and lower back since September 2013. AR 85. Sometimes she
must lay down due to her neck pain. AR 86. Maintaining stamina is one of her
biggest issues, as she testified to experiencing chronic fatigue. AR 88-89.
Rumzis also testified about headaches, which are less frequent now that she
lives in South Dakota, but she still has strong pain behind her eyes. AR 92.
She has a difficult time concentrating or comprehending what she reads, and
while she still drives when she can, she has her daughter drive her when she
does not feel comfortable. AR 85, 90-91.
Rumzis, a lifetime musician, testified about short term memory loss and
how there are times when she tries to read music but the music notes look
completely foreign to her. AR 93-94. On good days, she said she can drive, do
dishes, and do laundry, but on bad days, she spends the entire day in bed,
needs help getting dressed, and does not cook. AR 86-87. Rumzis testified
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about how her pain has affected her socially, as she used to be a “social
butterfly” but now she does not want to leave the house if she does not feel
well. AR 90. Finally, Rumzis stated that she feels she can be on her feet for two
hours on a good day. AR 88.
Mercedes Lodnel, the daughter of Rumzis, also testified at the hearing.
AR 95. Lodnel testified that her mother’s condition was worse when it first
developed in 2013, but she has more good days now that they live in South
Dakota. AR 96-98. She has witnessed her mother’s seizure-like episodes and
explained that it is difficult to calm her mother down during the episodes. AR
97. Lodnel, who has also been Rumzis’ student, testified that in the past her
mother was happy, not jittery, and enthused about her job. AR 99-100. But
now, according to Lodnel, her mother keeps more to herself. AR 100.
In response to the ALJ’s first hypothetical limiting Rumzis to a light level
of exertion, Samlaska testified that Rumzis could perform her past work as it
existed in the national economy. AR 105. But Samlaska noted that Rumzis
would not be able to perform her past music jobs at the higher exertional level
that she previously performed. Id. When asked if someone’s medical
impairments caused an individual to be absent more frequently, Samlaska
testified that such an individual would not be able to perform Rumzis’ past
work. AR 106.
The ALJ then posed a second hypothetical to Samlaska, which included
moderate limitations with concentration, persistence, and pace, and limited the
individual to work involving simple, routine, and repetitive tasks of three to
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four steps. AR 106-107. In response, Samlaska testified that such an
individual could not perform Rumzis’ past work and could not transfer her
skills to other semiskilled jobs. AR 107. But Samlaska indicated this individual
could perform some light, unskilled jobs, such as a housekeeper, service clerk,
or labeling machine tender. AR 107-108. When asked by Rumzis’ attorney if
someone could perform these light, unskilled jobs if she was off task 20 percent
of the workday, Samlaska said no. AR 109.
ALJ DECISION
Employing the five-step analysis associated with an application for social
security benefits, the ALJ denied Rumzis’ claim on March 10, 2017. AR 20. At
step one, the ALJ found that Rumzis had not engaged in substantial gainful
activity since October 19, 2013, the alleged onset date. AR 22. At step two, the
ALJ concluded that Rumzis suffered from the following severe impairments:
degenerative disc disease, dysfunction of the major joints, affective disorder,
and panic disorder. Id. At step three, the ALJ determined that Rumzis does not
have an impairment, or combination of impairments, that meets or medically
equals the severity required under 20 C.F.R. Part 404, Subpart P, Appendix 1.
Id. At step four, the ALJ concluded that Rumzis was unable to perform any
past relevant work (AR 30), but had the residual functional capacity (RFC) to
perform less than a full range of light work as defined in 20 C.F.R.
§ 404.1567(b). 1 AR 24. At step five, the ALJ found that there were jobs in the
The ALJ found that Rumzis “can lift and carry 20 pounds occasionally and 10
pounds or less frequently. She can sit a total of 6 hours as well as stand and
walk, combined, a total of 6 hours in an 8-hour workday. She has only
1
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national economy that Rumzis could have performed. AR 30. Thus, the ALJ
concluded that Rumzis was not disabled under the Social Security Act. AR 31.
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 of Social Security 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
conclusion.’ ” Teague, 638 F.3d at 614 (quoting Finch v. Astrue, 547 F.3d 933,
935 (8th Cir. 2008)). When reviewing the record, “the court ‘must consider both
evidence that supports and evidence that detracts from the Commissioner’s
decision.’ ” Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting
Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007)). 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
occasional overhead reach – bilaterally. She can climb stairs frequently but
slowly, using a handrail, and can only occasionally climb ladders, scaffolds and
similar devices. She can balance, crouch, kneel, stoop and crawl frequently.
She must avoid concentrated exposure to work hazards such as unprotected
heights, fast and dangerous machinery. Due to a combination of impairments,
the claimant has moderate limitations in concentration, persistence and pace,
as heretofore noted, which limit her to work involving only simple, routine and
repetitive tasks of three to four steps on average.” AR 24.
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determined 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)).
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)).
THE FIVE STEP PROCEDURE FOR DISABILITY DETERMINATIONS
Disability is defined as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or 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); 42 U.S.C. § 1382c(3)(A). “An individual shall be
determined to be under 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[.]” 42 U.S.C. § 423(d)(2)(A). An ALJ must apply a five-step procedure
when determining if an applicant is disabled. Smith v. Shalala, 987 F.2d 1371,
1373 (8th Cir. 1993). The steps are as follows:
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Step One: Determine whether the applicant is presently engaged in
substantial gainful activity. 20 C.F.R. § 404.1520(b); 20 C.F.R. § 416.920(b).
Step Two: Determine whether the applicant has an impairment or a
combination of impairments that are severe. 20 C.F.R. § 404.1520(c); 20 C.F.R.
§ 416.920(c).
Step Three: Determine whether any of the severe impairments identified
in Step Two match the listing in Appendix 1. 20 C.F.R. § 404.1520(d); 20
C.F.R. § 416.920(d).
Step Four: Considering the applicant’s RFC, determine whether the
applicant can perform any past relevant work. 20 C.F.R. § 404.1520(f); 20
C.F.R. § 416.920(f).
Step Five: Determine whether any substantial gainful activity exists in
the national economy that the applicant can perform. 20 C.F.R. § 404.1520(g);
20 C.F.R. § 416.920(g).
DISCUSSION
Rumzis urges the court to reverse the ALJ’s decision, contending that the
ALJ erred at step five of the analysis. Specifically, Rumzis argues that there
was not “substantial evidence in the record to support the ALJ’s determination
that considering [Rumzis’] age, education, work experience, and residual
functional capacity, she could perform jobs such as a housekeeper cleaner, a
service clerk, or a label machine tender.” Docket 19 at 10-11. Rumzis also
argues that the ALJ did not properly consider her statements regarding her
symptoms and complaints of pain when determining Rumzis’ RFC and whether
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Rumzis could perform unskilled jobs in the national economy. Docket 19 at 1213. The court will address this latter argument first as it relates to step four on
the five-step process.
I.
Whether the ALJ Properly Considered Rumzis’ Statements about her
Symptoms and Pain
In arguing that Rumzis is unable to perform unskilled jobs, such as the
ones listed by the vocational expert, Rumzis references her credibility as a
witness and the statements she made about her symptoms. Docket 19 at 12.
Rumzis contends that “even some consistency of the symptoms [she described]
would preclude her from working at any unskilled job.” Id.
First, the court notes that a claimant’s statements about her symptoms,
previously referred to as “credibility,” are evaluated by the ALJ to determine the
claimant’s RFC—not in relation to whether a claimant can perform jobs listed
by a vocational expert at step five. See SSR 16-3p, 2016 WL 1119029, at *11
(Mar. 26, 2016) (“An individual’s residual functional capacity is the most the
individual can still do despite his or her impairment-related limitations. We
consider the individual’s symptoms when determining his or her residual
functional capacity and the extent to which the individual’s impairment-related
symptoms are consistent with the evidence in the record.”). Second, the ALJ
does not evaluate a claimant’s statements about the intensity, persistence, and
effect of her symptoms in isolation at this step. The ALJ must also determine if
the objective medical evidence in the record supports the severity of a
claimant’s alleged symptoms. See Crawford v. Colvin, 809 F.3d 404, 410 (8th
Cir. 2015) (“[A]n ALJ may disbelieve a claimant’s subjective reports of pain
11
because of inherent inconsistencies or other circumstances.” (internal
quotation omitted)).
Rumzis argues there is some consistency between her symptoms and the
evidence in the record that could support an alternative decision by the ALJ.
Docket 19 at 12. But this is not for this court to decide. The court will not
substitute its judgment for that of the ALJ. Fastner v. Barnhart, 324 F.3d 981,
983 (8th Cir. 2003). The ALJ explained why he did not find Rumzis’ statements
“entirely consistent with medical evidence and other evidence in the record” (AR
25) by citing to objective medical evidence in the record. See AR 24-30. After
reviewing the record as a whole, the court finds there is substantial evidence to
support the ALJ’s decision regarding the consistency between Rumzis’
statements about her symptoms and the objective medical evidence in
determining Rumzis’ RFC.
II.
Whether Substantial Evidence Supports the ALJ’s Finding Regarding
her Ability to Perform Other Jobs
Rumzis argues that there is not substantial evidence in the record to
support the ALJ’s finding that she could perform other jobs in the national
economy. She bases her argument on the fact that when asked by plaintiff’s
attorney if a person off task 20 percent of the workday could perform the
unskilled jobs of housekeeper cleaner, service clerk, or label machine tender
listed by the vocational expert, the vocational expert said no. Docket 19 at 11.
If the ALJ finds that a claimant cannot perform her past work, the
burden shifts to the Commissioner at step five to show that the claimant can
perform other work that exists in the national economy. Jones v. Astrue, 619
12
F.3d 963, 971 (8th Cir. 2010) (quotations omitted). The ALJ’s determination
that a claimant can perform work that exists in the national economy must be
supported by substantial evidence. Tucker v. Barnhart, 363 F.3d 781, 783 (8th
Cir. 2004). “Testimony from a vocational expert constitutes substantial
evidence only when based on a properly phrased hypothetical question.” Id. at
784 (quoting Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir. 1996)). A
hypothetical question posed to the vocational expert is sufficient if it includes
impairments accepted as true by the ALJ. Roberts v. Apfel, 222 F.3d 466, 471
(8th Cir. 2000).
Here, in reviewing the medical evidence and explaining what weight to
give to various medical providers, the ALJ noted that Rumzis’ psychological
consultative examiner, Jessica Leclerc, Ph.D., stated that Rumzis could follow
three-step instructions with no limitations in sustained concentration. AR 28.
The ALJ gave Dr. Leclerc’s statements “significant weight” because they
supported limitations in Rumzis’ RFC. Id.
Then in step five, the ALJ’s hypothetical question to the vocational expert
included a limitation involving simple, three to four step tasks and moderate
limitations with concentration, persistence, and pace. AR 106-107. Thus, the
ALJ’s hypothetical properly included impairments that were supported by
substantial evidence in the record. See Lacroix v. Barnhart, 465 F.3d 881, 889
(8th Cir. 2006) (noting that a hypothetical should “capture the concrete
consequences” of a claimant’s impairments (internal quotation omitted)). In
addition, the ALJ’s hypothetical was consistent with his RFC finding.
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The court finds that the ALJ’s hypothetical to the vocational expert was
properly phrased, and thus the vocational expert’s testimony in response
constitutes substantial evidence to support the ALJ’s finding at step five.
Tucker, 363 F.3d at 783. In her reply, Rumzis references testimony presented
at the hearing and how it is “reasonable to hypothesize that [Rumzis] would be
‘off task 20 percent of the workday’ ” or would need extra breaks based on this
evidence. Docket 24 at 2-3. The court does not find this persuasive because
Rumzis has not pointed to objective medical evidence or a medical provider’s
findings establishing how Rumzis’ conditions would cause her to be off task 20
percent of the work day. Thus, posing this question to the vocational expert did
not undermine the ALJ’s findings at step five, which were properly based on
the vocational expert’s testimony.
III.
Whether Remand is Appropriate because the Appeals Council did not
Consider Additional Evidence
Finally, Rumzis argues in her reply brief for the first time that this court
should remand the decision to the agency to consider additional evidence.
Docket 24 at 3. Rumzis contends that the Appeals Council refused to consider
new medical evidence submitted to it, which showed Rumzis had been
diagnosed with POTS syndrome/dysautonomia. Id. at 3-4.
The Eighth Circuit has summarized a court’s ability to review an Appeals
Council’s decision as follows:
We first determine the effect of the evidence submitted to the
Appeals Council. The regulations provide that the Appeals Council
must evaluate the entire record, including any new and material
evidence that relates to the period before the date of the ALJ’s
decision. See 20 C.F.R. § 404.970(b). The newly submitted evidence
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thus becomes part of the “administrative record,” even though the
evidence was not originally included in the ALJ’s record. See Nelson
v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992). If the Appeals Council
finds that the ALJ’s actions, findings, or conclusions are contrary to
the weight of the evidence, including new evidence, it will review the
case. See 20 C.F.R. § 404.970(b). Here, the Appeals Council denied
review, finding that the new evidence was either not material or did
not detract from the ALJ’s conclusion. In these circumstances, we
do not evaluate the Appeals Council’s decision to deny review, but
rather we determine whether the record as a whole, including the
new evidence, supports the ALJ’s determination. See Nelson, 966
F.2d at 366.
Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000).
20 C.F.R. § 404.970(b) further provides that the Appeals Council will
only consider the additional evidence if the claimant shows good cause for not
submitting the evidence earlier. Here, the Appeals Council found that Rumzis
did not provide good cause for not submitting the additional evidence sooner.
AR 2. Thus, the Appeals Council did not consider the evidence, notified Rumzis
of her right to file a new application, and denied review of the ALJ’s decision.
Id. Because the Appeals Council denied review, this court does not evaluate the
Appeals Council’s decision to deny review. Cunningham, 222 F.3d at 500; see
also Browning v. Sullivan, 958 F.2d 817, 822-23 (8th Cir. 1992) (concluding
that because the Appeals Council denied review despite new evidence and thus
the court lacked jurisdiction to review the Appeals Council’s decision to deny
review, the issue is whether the new evidence changes the court’s conclusion
that substantial evidence supported the ALJ’s final decision).
The court “consider[s] evidence that supports the ALJ’s decision as well
as evidence that detracts from it, but even if inconsistent conclusions may be
15
drawn from the evidence, the agency’s decision will be upheld if it is supported
by substantial evidence on the record as a whole.” Guilliams v. Barnhart, 393
F.3d 798, 801 (8th Cir. 2005). Looking at the additional evidence Rumzis
submitted to the Appeals Council, which has been made part of the record (see
AR 9-70), the court concludes that substantial evidence still supports the ALJ’s
findings here. The physician at Broadspire listed dizziness, blurred vision, loss
of speech, hypotension, lightheadedness, memory loss, loss of balance, and
muscle spasms as symptoms of POTS. AR 15. While the court is cognizant of
the fact that the record from Broadspire diagnosed Rumzis with POTS
syndrome/dysautonomia for the first time, POTS was discussed as a possibility
by Rumzis’ other providers and the ALJ fully considered the symptoms of POTS
and the objective medical evidence treating those symptoms in his findings. See
AR 24-30. Thus, the court does not find the additional evidence submitted to
the Appeals Council mandates a remand to the ALJ.
CONCLUSION
The court concludes that substantial evidence in the record supports the
ALJ’s findings regarding the consistency between Rumzis’ statements about
her symptoms and the objective medical evidence. Additionally, the ALJ’s
hypothetical posed to the vocational expert mirrored the ALJ’s RFC finding and
properly included all limitations found by the ALJ based on the evidence in the
record. Thus, the vocational expert’s response constitutes substantial evidence
to support the ALJ’s finding at step five. Finally, the additional evidence
submitted to the Appeals Council does not detract from this court’s decision
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that substantial evidence supported the ALJ’s findings. Because substantial
evidence supports the ALJ’s decision,
IT IS ORDERED that the decision of the Commissioner is affirmed.
Dated January 23, 2019.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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