The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
TORRAE BROWN PLAINTIFF
VS. CASE NO. 3:19CV00013 PSH
NANCY A. BERRYHILL, Acting Commissioner,
Social Security Administration DEFENDANT
ORDER
Plaintiff Torrae Brown (“Brown”), in his appeal of the final decision of the Commissioner
of the Social Security Administration (defendant “Berryhill”) to deny his claim for Disability
Insurance benefits (“DIB”), contends the Administrative Law Judge (“ALJ”) erred by: (1) failing
to acknowledge Brown’s severe arthritis of the spine; (2) giving no evidentiary weight to the opinon
of Brown’s treating physicians while giving controlling weight to the opinions of nonexamining
disability screeners; (3) failing to provide any limitations in standing, walking, or reaching in the
residual functional capacity (“RFC”) assessment; and (4) failing to rely on substantial vocational
evidence to support the decision. The parties have ably summarized the medical records and the
testimony given at the administrative hearings conducted on November 28, 2017, and July 24, 2018.1
(Tr. 23-50). The Court has carefully reviewed the record to determine whether there is substantial
evidence in the administrative record to support Berryhill’s decision. 42 U.S.C. § 405(g). The
1
The ALJ presiding over the initial administrative hearing retired prior to issuing a decision, and the
case was assigned to another ALJ, who chose to conduct an additional hearing.
1
relevant period under consideration is from Brown’s amended onset date of May 13, 2015, through
the date of the ALJ’s decision, August 10, 2018.
The Administrative Hearings:
At the November 2017 hearing Brown stated he was 49 years old and had a twelfth grade
education. Brown explained he worked for Federal Express from 2001 until January 2015, last
working as an auditor from 2013-2015. He applied for retirement due to his last back spasm
episode. Brown lived with his wife and twenty-three year old son. Brown cited neck and back pain
radiating throughout his body as impediments preventing him from working. The pain, according
to Brown, caused tingling in his hands, requiring him to use an electric razor, button only loose
buttons, and keeping him from opening jars. Brown estimated he could stand 20 minutes, sit 20-30
minutes, walk 100 yards, and lift an empty pot. Around the house, Brown stated he could stir a pot,
vacuum, rinse some dishes, but could not do the bending required to wash clothes. Others in his
family tended to yardwork, and Brown said his wife shopped and he accompanied her but unloaded
only the lighter items. Brown described tossing and turning, resulting in fitful sleep. Brown listed
Gabapentin, Cyclobenzaprine, Naproxen, a TENS unit, heating pad, and lengthy hot showers as
medications and treatments used to combat his impairments. According to Brown, side effects such
as nausea, blurry vision, speaking problems, and gas, accompanied the medications. Dr. Bridgid
Steele (“Steele”) was identified as Brown’s primary care physician. Brown also testified to
receiving chiropractic care in the past, discontinued at the time of the hearing due to a “paperwork
issue.” (Tr. 54). An average day for Brown included alternating positions, stretching, and watching
television. (Tr. 22-58).
At the second administrative hearing, on July 24, 2018, Brown’s testimony mirrored the
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earlier hearing in many regards. He added that he did not have a driver’s license because he had not
sought a new license following a DUI in 2013 and because neck pain and stiffness would interfere
with safe driving. Brown also added that he attended several colleges after high school. He also
described his departure from his last job in more detail, stating he had a “real bad muscle spasm”
in 2015 and was transported to the VA hospital. He stated that a doctor told him, “You’re getting
them [spasms] too often now, and you just can’t do it anymore,” and if he continued he was “going
to be in a wheelchair.” (Tr. 75). Brown acknowledged an inpatient stint in rehab in 2015 to address
alcohol issues, and testified he had not had a drink since leaving rehab. Brown stated “any time I
do anything . . . it causes a real terrible muscle spasm.” (Tr. 82). He estimated he could walk for
5-10 minutes, and stand for 30 minutes, needing to change positions. Brown said he did no
yardwork and little housework.2 He stated he might take a daily walk, and he went to church on
Sunday. Brown reiterated his problems with tingling hands, hindering him from opening and
holding things, and he estimated it took a month to recover from a muscle spasm. He listed
medications as Gabapentin, Naproxen, Cyclobenzaprine, and Amitriptyline, and stated he battled
the side effects (lethargy, gas, and memory problems) by varying the dosage intakes. Brown again
identified Steele as his treating physician, indicating he saw her annually. He also stated he saw a
chiropractor. Brown stated that his rehab was court ordered following his September 2013 DUI.
He explained that he pled guilty to the DUI even though he was not drinking – instead Brown did
not know if “I was stunned or if I was hit with a billy club” and he was “pretty sure I had a
concussion, and I kept fading in and out” and was unconscious when found by the police. (Tr. 100-
2
Early in the relevant period, in August 2015, Brown complained of sinus drainage after he mowed
the grass. (Tr. 583).
3
101).
Daniel Lustic (“Lustic”), a vocational expert, assessed Brown’s prior work as a safety trainer
as skilled, light work, and his past work as a material handling supervisor as skilled, medium work.
The ALJ posed a hypothetical question to Lustic, asking him to assume a worker of Brown’s age,
education, and experience during the relevant period who could perform the full range of light work
with the following limitations: never climbing ladders, ropes, or scaffolds; never working at
unprotected heights, near moving mechanical parts, or operating a motor vehicle ; and crawling and
stooping occasionally. Lustic stated such a worker could perform Brown’s past relevant job as a
safety trainer, as well as the jobs of cashier, sales attendant, and ticket seller. The variables in the
hypothetical question were altered in various ways. Since the ALJ ultimately decided Brown had
the RFC to perform the full range of light work, the Court will not address these permutations on
the initial hypothetical question posed to Lustic. (Tr. 102-110).
The ALJ’s Decision:
In her August 10, 2018 decision, the ALJ determined Brown had the severe impairment of
degenerative disc disease of the cervical and lumbar spine. The ALJ found the impairment did not
meet the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. As
previously noted, the ALJ assessed Brown to have the RFC to perform the full range of light work.
Relying upon Lustic’s testimony, the ALJ found Brown capable of performing his past relevant
work as a safety trainer, as well as the jobs of cashier, sales attendant, and ticket seller. Therefore,
the ALJ held Brown was not disabled at any time during the relevant period.
Medical Evidence During the Relevant Period:3
3
In the weeks prior to the onset date of May 13, 2015, Brown completed his in-patient rehabilitation
4
Brown was seen by Dr. Tyler Brolin (“Brolin”) on June 20, 2015, at the Veterans
Administration (“VA”) Hospital in Memphis, Tennessee, for a compensation and pension
examination. Brolin’s findings regarding Brown’s cervical spine included: normal range of motion;
no objective evidence of localized tenderness or pain on palpation of the neck; pain, weakness,
fatigability or incoordination does not significantly limit his functional ability with repeated use over
a period of time; no localized tenderness, guarding, or muscle spasm of the cervical spine; normal
strength (5/5) in elbow flexion, elbow extension, wrist flexion, wrist extension, finger flexion, and
finger abduction; normal deep tendon reflexes in right and left triceps and brachioradialis; normal
sensation to touch in shoulder area, decreased sensation to touch in inner/outer forearm, and normal
sensation to touch in hand/fingers; no radicular pain or any other signs or symptoms due to
radiculopathy; no functional impairment of an extremity due to a neck condition; the presence of
arthritis on the imaging studies of the cervical spine; and no impact on Brown’s ability to work due
to his cervical spine condition.
Brolin also assessed Brown’s back condition, finding: no flare-ups of the back; no report of
functional loss or functional impairment by Brown; normal range of motion; the presence of
localized tenderness or pain on palpation of the back; an ability to perform repetitive use testing of
the back without loss of function or range of motion after three repetitions; pain, weakness,
fatigability or incoordination does not significantly limit his functional ability with repeated use over
program for alcohol dependence. (Tr. 377-521). Treating physicians in the program noted back and
foot pain and requested both neurosurgery and podiatry consults. (Tr. 396-397). Cervical and
lumbar MRI’s were conducted on April 29, 2015. The cervical MRI showed “very minimal
degenerative changes which may be slightly worse than a similar study from 7/3/07" and the lumbar
MRI showed “minimal degenerative disc disease at L5-S1, but no stenosis in a patient with a large
bony canal.” (Tr. 580, 720-722, 747).
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a period of time; no guarding or muscle spasm of the back; normal strength of hips, knee extension,
ankle plantar flexion; ankle dorsification, and great toe extension; no muscle atrophy; normal knee
and ankle deep tendon reflexes; normal sensation to light touch for upper anterior thigh, thigh/knee,
lower leg/ankle, and foot/toes; negative straight leg raising tests; no radicular pain or any other signs
or symptoms due to radiculopathy; no ankylosis; no other neurologic abnormalities related to a back
condition; no intervertebral disc syndrom requiring bed rest; no arthritis documented from imaging
studies; and no impact on Brown’s ability to work due to his back condition.4 (Tr. 589-607).
Brown was seen by Dr. Uzma Shirwany (“Shirwany”) at the VA Hospital in Memphis in July
of 2015. He complained of foot pain and tingling in left finger tips without weakness, and requested
physical therapy for his neck and back. On physical examination, Shirwany noted mild tenderness
in Brown’s heel with no swelling, high cholesterol, and low vitamin D. Shirwany described
Brown’s spine condition as stable, directed that Gabapentin be tried for neuropathy, and referred
Brown for physical therapy. Brown was directed to return in 12 months. (Tr. 584-587).
Brown reported for physical therapy on August 12 and 27, September 21, October 20 and
27, and November 2, 2015. (Tr. 582, 753-754, 579, 568-569, 556-557, 563-564). At his final
session, the physical therapist noted he rode a stationary bicycle for 15 minutes with rest breaks,
performed numerous stretches, did core stabilization exercises, and had cervical traction and heat
therapy for 15 minutes. Brown reported no post treatment aggravation of pain. (Tr. 556-557).
In January 2016, a nonexamining state agency physician opined Brown could perform the
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Brolin indicated his findings with regard to Brown’s back were “medically inconsistent” with
Brown’s subjective statements. (Tr. 597). Brolin also examined Brown’s feet, finding mild left
calcaneal bursitis, with no functional impact on Brown’s ability to perform any type of occupational
task, such as standing, walking, lifting, or sitting. (Tr. 601-607).
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full range of light work, noting mild degenerative disc disease with chronic pain. (Tr. 134-135).
In May 2016, Steele, a VA Hospital physician, signed a medical source statement assessing
Brown’s physical abilities. Steele diagnosed degenerative arthritis and disc disease spine, and
opined that Brown could do the following: lift and carry occasionally or frequently less than 10
pounds; stand and walk about 2 hours in a work day, stand or walk 15 minutes before needing a
break; sit about 4 hours in a work day, needing a break after 30 minutes; needing frequent rest
periods, longer than normal breaks, and the opportunity to shift at will from sitting or
standing/walking; unable to reach in all directions; able to finger one third of a work day; unable to
handle; lethargic and dizzy from side effects from Gabapentin and Flexeril; must avoid all exposure
to extreme cold and soldering fluxes; must avoid moderate exposure to extreme heat and high
humidity; and must avoid concentrated exposure to fumes, odors, dust, gas, solvents/cleaners, and
chemicals. Steele estimated Brown’s impairments would result in him being absent from work more
than 3 days a month. Steele wrote “see MRI” as an objective medical finding supporting her
findings, and indicated Brown’s limitations were in effect from September 22, 2014, through May
24, 2016. (Tr. 792-795). Steele notified Brown by mail a few days later that his recent spine “xray
shows severe arthritis.” (Tr. 795).
Dr. Donna E. Swain (“Swain”), a radiologist, examined an MRI of Brown’s cervical spine
taken on May 24, 2016, comparing the image with one taken in September 2014. Swain found there
was “multilevel degenerative disc disease which extended from the level of C4-5 through C6-7
which is severe in nature and moderate in character at C3-4. C7-T1 disc space is not adequately
visualized thought the alignment in normal. Prevertebral soft tissues is normal and odontoid is
normal.” (Tr. 799). Swain’s impression was persistent severe multilevel degenerative disc disease
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“which may be slightly more pronounced since 2014.” (Tr. 799).
Another MRI of Brown’s cervical spine was performed on August 24, 2016. Radiologist
James B. Woods (“Woods”) found there was no change from April 2015. Brown was described as
having degenerative disc disease, and Woods found “some mild frontal stenosis at the exit of the
right C5 nerve root. Clinical correlation is necessary.” (Tr. 870). Steele contacted Brown and
discussed the MRI results. Steele’s note to the file described Brown as having chronic low back
pain not better with exercises, stretches, TENS and meds. She recommended chiropractic care and
physical therapy. (Tr. 889-890). An electromyography test, used to assess the health of the muscles
and nerve cells, was also performed, and the results were normal. (Tr. 891).
Brown consulted with a VA physical therapist on September 8, 2016, reporting lumbar and
cervical pain of 8/10. The treatment plan formulated for Brown included heat and ice, activity
modification, active exercises to improve low back pain and range of motion, a heating pad and a
home exercise program. On September 29, Brown reported to Steele that he experienced severe
pain, tingling in his fingers, muscle spasms, and other symptoms after walking about a half mile per
physical therapy recommendations. Brown asked for an alternative pain strategy. (Tr. 886). On
November 9, Brown reported to Steele that the Gabapentin was giving him problems, and that he
continued to have headaches, tingling in his hands, and muscle spasms. Steele responded,
suggesting a change from Gabapentin to Lyrica. (Tr. 882).
Brown began chiropractic care in November 2016. Lawrence Nichols, D.C., (“Nichols”) and
Lincoln Joshua Cole, D.C., (“Cole”) treated Brown. Nichols saw Brown seven times in November
2016, concluding on November 30 with Nichols recording “remarkable” improvement in increased
joint range of motion, muscle strength in lower extremities, dermatome sensation patterns, and pain.
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(Tr. 846-864, 866, 899). Cole treated Brown on ten occasions in November and December 2017
and January 2018. (Tr. 893-898, 920-925, 927-930). Brown’s subjective complaints of neck and
back pain were 8 or 9 on a scale of 1-10. At his final visit, Cole’s objective findings included
improvement from a rating of 40% to 61%. Cole noted Brown’s prognosis was good, and found an
increase in range of motion and muscle strength and a decrease in pain following the treatment. (Tr.
929).
The Court will now consider Brown’s claims for relief.
ALJ failure to acknowledge Brown’s severe arthritis of the spine.
Brown contends the ALJ erred by failing to acknowledge, at Step 2 of the sequential evaluation,
that his severe arthritis of the spine was a severe impairment. The standard for finding a severe
impairment is low. Nicola v. Astrue, 480 F.3d 885 (8th Cir. 2007). Brown bears the burden of
showing he has a medically determinable impairment or combination of impairments that
significantly limits his ability to perform basic work activities. Kirby v. Astrue, 500 F.3d 705 (8th
Cir. 2007); 20 C.F.R. §§ 404.1520(a)(4))(ii), 404.1520 (c), and 404.1521(a). An impairment is not
severe if it is only a “slight abnormality” that does not significantly limit the ability to do basic work
activities. Kirby v. Astrue at 707. A diagnosis alone does not establish the existence of a severe
impairment. Perkins v. Astrue, 648 F.3d 892 (8th Cir. 2011).
Brown argues that the ALJ discussed and found non-severe knee pain and carpal tunnel
syndrome “but failed to even consider whether spinal arthritis was nonsevere.” Docket entry no.
11, page 16. A review of the ALJ’s decision belies this contention. After discussing Brown’s knee
problems and carpal tunnel syndrome, the ALJ noted Brown’s allegation of disability “due to
arthritis in his neck and back.” (Tr. 13). The ALJ proceeded to address this issue, considering,
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among other things, April 2015 MRIs of the cervical spine and lumbar spine showing minimal
degenerative changes, an August 2016 MRI showing no change from 2015, and a normal nerve
conduction study from June 2016. The ALJ also cited a lack of treatment by epidural injections,
neurological evaluation, and prescription analgesic medications, and also improvement with
chiropractic treatment, as items which were consistent with the absence of disabling spinal arthritis.
Substantial evidence supports the ALJ’s finding that Brown’s arthritis was not a severe
impairment. Although he was diagnosed with severe arthritis, notably by Steele, the medical
evidence cited by the ALJ amounts to substantial evidence in support of his finding. The ALJ’s
finding of a severe impairment of degenerative disc disease is an acknowledgment of Brown’s back
issues. Given the medical evidence before him, the ALJ was not compelled to find Brown’s arthritis
was a separate severe impairment. In addition, Brown’s own testimony at the administrative
hearings was that he retired due to muscle spasms and continued to deal with this impairment, not
with arthritic pain.
There is no merit to Brown’s first claim, as substantial evidence supports the ALJ’s decision,
even acknowledging the low standard to be met to demonstrate a severe impairment.
ALJ error in giving no evidentiary weight to the opinion of Brown’s treating physicians
while giving controlling weight to the opinions of nonexamining disability screeners.
Brown faults the ALJ for failing to give any evidentiary weight to Steele’s medical source
statement executed in May 2016. The ALJ addressed Steele’s medical source statement, giving it
“no evidentiary weight” due to it being inconsistent with Steele’s treatment notes, the other medical
evidence in the record, and in conflict with Brown’s documented improvement. (Tr. 15). Brown
frames his argument as an “either/or” scenario, where the ALJ allegedly rejected Steele’s findings
10
and embraced the opinions of the nonexamining disability screeners. This mischaracterizes the
findings of the ALJ. While the nonexamining disability screeners are cited, the ALJ did not
exclusively rely upon them. Instead, the ALJ cites other treating physicians, imaging results,
improvement with chiropractic care, and the episodic nature of the pain as supportive of his decision.
For example, Brolin’s thorough findings at the outset of the relevant period indicated Brown’s neck
and back impairments would not impact his ability to work. Brolin, like Steele, was a VA Hospital
physician. In addition, another VA physician, Shirwany, described Brown’s spine condition as
stable, referred him for physical therapy, and directed he return in one year.
A treating physician’s medical opinions are given controlling weight if they are well-supported
by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with
the other substantial evidence. See Choate v. Barnhart, 457 F.3d 865 (8th Cir. 2006). Here, the ALJ
properly discounted Steele’s 2016 statement for the reasons stated above. Also, Steele’s own
treatment notes from August 2017 are at odds with the medical source statement, as she assessed
Brown with nontender spine, negative straight leg raises, normal muscle bulk, and improving lower
back pain with chiropractic care. See Gates v. Commissioner, Social Security Administration, 721
Fed.Appx. 575 (May 14, 2018). While a treating physician’s opinion should not ordinarily be
disregarded and is entitled to substantial weight, such an opinion may be discounted or even
disregarded where other medical assessments are supported by better or more thorough medical
evidence. Fentress v. Berryhill, 854 F.3d 1016 (8th Cir. 2017). Here, the ALJ’s discounting of
Steele’s statement was supported by other medical assessments by treating physicians, and the
decision was supported by substantial evidence.
Brown also faults the ALJ for failing to address the findings of Swain and Nichols. Swain,
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a radiologist, found Brown to have “persistent severe multilevel degenerative disc disease” based
upon her May 2016 review of images of the cervical spine. (Tr. 799). Swain’s impression also was
that Brown’s disc disease “may be slightly more pronounced since 2014.” (Tr. 799). Swain’s
findings are in conflict with the April 2015 imaging results (cervical MRI showed “very minimal
degenerative changes which may be slightly worse than a similar study from 7/3/07" and the lumbar
MRI showed “minimal degenerative disc disease at L5-S1, but no stenosis in a patient with a large
bony canal.”) and with the normal findings of Brolin in June 2015. The ALJ was not obligated to
accept Swain’s diagnosis to the exclusion of the other medical evidence of record.
Nichols, a chiropractor, assessed Brown in November 2016 with “severely decreased” range
of motion in cervical lateral flexion and rotation and in lumbar flexion and rotation, cervical
compression, and shoulder depression with upper extremity limitations. (Tr. 860-862). However,
the impact of these findings is softened by Nichols’ findings less than two weeks later that Brown’s
improvement was “remarkable” in numerous areas and his “prognosis remains favorable.” (Tr. 899).
Under these circumstances, substantial evidence supports the ALJ’s weighing of the medical opinion
evidence, including his treatment of Nichols’ treatment notes.
There is no merit in the second argument of Brown.
ALJ failure to provide any limitations in standing, walking, or reaching in the RFC.
Brown next contends the ALJ’s RFC determination was erroneous, alleging it should have
included limitations on his ability to stand, walk, and reach, rather than finding he could perform
the full range of light work. Reversal of the ALJ is not appropriate
“so long as the ALJ's decision falls within the ‘available zone of choice.’ ” Bradley
v. Astrue, 528 F.3d 1113, 1115 (8th Cir.2008) (quoting Nicola v. Astrue, 480 F.3d
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885, 886 (8th Cir.2007)). The decision of the ALJ “is not outside the ‘zone of choice’
simply because we might have reached a different conclusion had we been the initial
finder of fact.” Id. (quoting Nicola, 480 F.3d at 886). Rather, “[i]f, after reviewing
the record, the court finds it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the ALJ's findings, the court must
affirm the ALJ's decision.” Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.2005).
Owen v. Astrue, 551 F.3d 792, 798 (8th Cir. 2008).
The Court has already addressed the medical opinions of Steele, one of the treating VA
physicians, and found the ALJ appropriately discounted her opinions because, among other things,
they were at odds with other findings by VA physicians. Gates v. Commissioner, Social Security
Administration, 721 Fed.Appx. 575 (May 14, 2018). Brown also cites his subjective complaints,
such as pain reported to Nichols, as supportive of additional RFC limitations. However, Nichols’
brief treatment period of chiropractic care, concluding with remarkable improvement, does not
compel the result urged by Brown.
It “is the ALJ’s responsibility to determine a claimant’s RFC based on all relevant evidence,
including medical records, observations of treating physicians and others, and claimant’s own
descriptions of his limitations.” Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Here,
the ALJ was faced with medical evidence from various providers at the VA hospital and from two
chiropractors. The evidence was capable of different interpretations. The best example of this is
the findings of Brolin and Steele, two VA physicians who viewed Brown’s capabilities in vastly
different ways. The ALJ could make the assessment that he did, and substantial evidence supports
his findings. The ALJ’s ultimate RFC conclusion fell within the zone of choice.
ALJ failure to rely on substantial vocational evidence to support the decision.
Brown notes that the four jobs cited by Lustic all required the worker to perform light work.
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Brown contends this was error because the hypothetical question did not capture all of his
impairments. Specifically, he urges that he could not walk and stand and reach in all directions, as
required by the cited jobs. This argument, in essence, is a challenge to the RFC determination
reached by the ALJ. The Court has already addressed this assertion, finding substantial evidence
supports that Brown could perform the full range of light work. As a result, the hypothetical
question adequately captured his abilities. Brown also contends ALJ error regarding the alternate
finding that he could perform other jobs in the national economy, such as ticket seller, cashier, and
sales attendant. The Court need not address this argument. The ALJ’s Step 4 finding that Brown
could perform his past relevant work as a safety trainer is amply supported by the record, including
Lustic’s testimony which he indicated was consistent with the Dictionary of Occupational Titles.
There 1s no merit to the final argument advanced by Brown.
In summary, substantial evidence supports the determinations reached by the ALJ. The
Court is mindful that its task is not to review the record and arrive at an independent decision, nor
is it to reverse if it finds some evidence to support a different conclusion. The test is whether
substantial evidence supports the ALJ’s decision. See, e.g., Byes v. Astrue, 687 F.3d 913, 915 (8"
Cir. 2012). This test is satisfied in this case.
IT IS THEREFORE ORDERED that the final decision of Berryhill 1s affirmed and Brown’s
complaint is dismissed with prejudice.
IT IS SO ORDERED this 6" day of September, 2019. wf
aoe
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